1 Howard M. Shanker (#015547) Tamera C. Shanker (#016016) 2 THE SHANKER LAW FIRM, PLC 600 East Baseline Road, Suite C-8 3 Tempe, Arizona 8583-1210 Phone: (480) 838-9448 4 Facsimile: (480) 838-9433 [email protected] 5 [email protected]

6 Attorneys for Plaintiffs Navajo Nation, Sierra Club Yavapai-Apache Nation, White Mountain Apache Tribe, 7 Center for Biological Diversity, and FAN

8 William C. Zukosky (#020084) Laura Berglan (#022120) 9 Terence M. Gurley (#019805) DNA - People's Legal Services, Inc. 10 201 East Birch Avenue, Suite 5 Flagstaff, AZ 86001 11 Tele: (928) 774-0653 ext. 4800 Fax: (928) 773-4952 12 [email protected] 13 [email protected] [email protected] 14 Attorneys for Plaintiffs Hualapai Tribe; 15 Norris Nez; and Bill Bucky Preston

16 Lynelle K. Hartway (#020486) A. Scott Canty (#010575) 17 Office of General Counsel The Hopi Tribe 18 P.O. Box 123 Kykotsmovi, AZ 86004 19 (928) 734-3140 (928) 734-3149 fax 20 [email protected] [email protected] 21 Attorneys for Hopi Tribe 22 23 Alysia LaCounte Richard Monette 24 Troy Klarkowski BROWN & LaCOUNTE,LLP 25 3001 W. Beltline Hwy, Suite 304 Madison, WI 53713 26 (608) 227-3100

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1 (608) 227-3115 [email protected] 2 [email protected] [email protected] 3 Attorneys for Havasupai Plaintiffs 4

5

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA

8 NAVAJO NATION et al., 9 No. CV 05-1824 PCT PGR Plaintiffs, No. CV 05-1914 PCT EHC 10 No. CV 05-1949 PCT NVW v. No. CV 05-1966 PCT JAT 11 U.S. FOREST SERVICE, et al., 12 PLAINTIFFS CONSOLIDATED Defendants. [PROPOSED] FINDINGS OF FACT 13 AND CONCLUSIONS OF LAW

14 15 16 Plaintiffs in this action hereby present their consolidated Proposed Findings of Fact

17 and Conclusions of Law. 18 1. Plaintiffs in this consolidated case include the Navajo Nation, the Hopi Tribe, 19 20 the Yavapai-Apache Tribe, the White Mountain Apache Tribe, the Hualapai Tribe, the

21 Havasupai Tribe, Bill Bucky Preston (a member of the Hopi Tribe), Norris Nez (a member 22 of the Navajo Nation), Rex Tilousi (a member of the Havasupai Tribe), Dianna Uqualla (a 23 member of the Havasupai Tribe), the Sierra Club, the Center for Biological Diversity, and 24 25 the Flagstaff Activist Network. 26

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1 2. Defendants are the U.S. Forest Service, Nora Rasure, the Forest Supervisor, 2 and Harv Forsgren, who was the appeal deciding officer and Regional Forester. Both Ms. 3 Rasure and Mr. Forsgren were named in their official capacity. 4 5 3. Arizona Snowbowl Resort Limited Partnership (“ASR”) moved to intervene in 6 these proceedings on or about June 27, 2005. The Court received briefing on ASR’s motion 7 and heard oral argument. ASR’s Motion to Intervene was granted on or about July 18, 2005. 8 9 4. As set forth in greater detail below, ASR operates the Snowbowl ski area 10 which is located on federal land on the San Francisco Peaks. At ASR’s request, the Forest 11 Service recently approved, in part: (a) approximately 205 acres of snowmaking coverage 12 13 throughout the area, utilizing reclaimed waste sewage effluent; (b) a 10 million-gallon 14 snowmaking reclaimed waste water reservoir near the top terminal of the existing Sunset 15 Chairlift and catchments pond below the Hart Prairie Lodge; (c) construction of a reclaimed 16 water pipeline between Flagstaff and Snowbowl with booster stations and pump houses; (d) 17 18 construction of a 3,000 to 4,000 square foot snowmaking control building; (e) construction 19 of a new 10,000 square foot guest services facility; (f) an increase in skiable acreage from

20 139 acres to approximately 205 acres – an approximate 47% increase; and (g) approximately 21 47 acres of thinning and 87 acres of grading/stumping and smoothing. Trial Ex. 2781 22 23 (Record of Decision “ROD”) at 32-36.

24 5. The parties filed Cross-Motions for Summary Judgment on, in part, claims 25 brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). These 26

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1 claims were based on the alleged failure of the Forest Service to comply with the 2 requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d 3 (“NEPA”), the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq. (“NHPA”), and 4 5 the National Forest Management Act, 16 U.S.C. §§ 1600-1687 (“NFMA”). An alleged 6 failure of the government to comply with its trust responsibility to the tribes was also 7 included in these motions. These claims, seeking declaratory and injunctive relief, were 8 taken under advisement by the Court on Cross-Motions for Summary Judgment. 9 10 6. The San Francisco Peaks in Arizona are “extensively documented and widely 11 recognized as a place of extreme cultural importance to the Hopi, Navajo,” and the other 12 tribes that are plaintiffs in this case. Trial Ex. 1034 (National Register Bulletin 38: 13 14 Guidelines for Evaluating and Documenting Traditional Cultural Properties). The Forest 15 Service has, for years, recognized the cultural and religious significance of the Peaks to the 16 tribes of the southwestern United States. 17 18 7. The plaintiff tribes, as well as the individually named members of some of 19 those tribes, also challenged the Forest Service action under the Religious Freedom

20 Restoration Act, 42 U.S.C. 2000bb to 2000bb-4 (“RFRA”). Cross-Motions for Summary 21 Judgment on plaintiffs’ RFRA claims have also been submitted and argued before the Court 22 23 and taken under advisement.

24 8. Pursuant to RFRA, plaintiffs are seeking declaratory and injunctive relief that 25 would: (1) declare that the selected alternative, as approved, violated RFRA; and (2) stop the 26

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1 Forest Service and ASR from taking steps in furtherance of the selected alternative. i.e., the 2 ski area, as currently configured, would be left in place and the status quo would be 3 maintained. 4 5 9. RFRA prohibits government from substantially burdening a person’s exercise 6 of religion, even if the burden results from a rule of general applicability, unless the 7 government can demonstrate the burden: (a) is in furtherance of a compelling governmental 8 9 interest; and (b) is the least restrictive means of furthering that compelling governmental 10 interest. 11 10. This Court held a Bench trial, including approximately 11 days of testimony on 12 13 the RFRA issue. The following Findings of Fact and Conclusions of Law set forth the 14 Court’s reasoning for its decision on the RFRA aspect of this case. 15 11. The Court notes that so long as one of the plaintiff tribes can demonstrate a 16 17 “substantial burden” under RFRA, the burden shifts to the government to demonstrate a 18 “compelling governmental interest.” If the government carries the “compelling

19 governmental interest” burden, it must then demonstrate that it used the “least restrictive 20 means” of accomplishing that interest. 21 22 12. In other words, the Court need not be placed in the unenviable position of

23 finding that the San Francisco Peaks may or may not be more sacred to some of the plaintiff 24 tribes than to others – so long as at least one of the tribes carries their burden of showing a 25 26

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1 “substantial burden,” that is sufficient to shift the burden to the government for purposes of 2 the compelling interest test under RFRA. 3 4 I. FINDINGS OF FACT 5 A. HISTORIC BACKGROUND INFORMATION 6 13. The San Francisco Volcanic field covers approximately 1,800 square miles in 7 northern Arizona. The field lies along the southern perimeter of the Colorado Plateau, 8 9 defined by the Mogollon Rim to the south of Flagstaff. The most prominent peak within the

10 field is Humphreys Peak. At 12,633 feet, Humphreys Peak is the highest point in Arizona. 11 Trial Ex. 2780 (FEIS at 1-2). 12 13 14. Collectively, Humphreys Peak, Agassiz Peak (12,356 feet), Doyle Peak

14 (11,460 feet), and Fremont Peak (11,696 feet) are identified on USGS maps as the San 15 Francisco Mountain. However, the mountain is more commonly referred to as the San 16 Francisco Peaks and is identified as such herein. Trial Ex. 2780 (FEIS at 1-2). 17

18 15. The Arizona Snowbowl is located entirely on the Coconino National Forest on 19 the western flank of the San Francisco Peaks. Skiers have been using the Snowbowl since 20 1938, when the ski area’s original base area was established in Hart Prairie. The foundation 21 22 of the base lodge (which was destroyed by fire in 1952) can still be seen just above the first

23 tower of the Hart Prairie Chairlift. Originally a dirt road, the Snowbowl Road was 24 constructed by the Civilian Conservation Corps. A rope tow, powered by a car engine, was 25 the only means of uphill transport. In 1954, the road was extended to the site of the Agassiz 26

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1 Lodge and in 1956, the Agassiz Lodge was constructed. A Poma surface lift was installed in 2 1958 and part of that lift line is now the Blackjack (trail #17). The original Agassiz Chairlift 3 was installed by the Riblet Corporation in 1962. Trial Ex. 2780 (FEIS at 1-2 to 1-3). 4 5 16. In the early 1970s, the ski area was purchased by Summit Properties. In April 6 1977, the Forest Service transferred the permit to operate the Snow Bowl skiing facilities 7 from Summit Properties, Inc., to the Northland Recreation Company. Trial Ex. 2780 (FEIS 8 9 at 1-3); see also, Wilson v. Block, 708 F.2d 735, 738 (D.C. Cir. 1983). 10 1. The 1979 NEPA Process and Resulting Legal Challenges 11 17. In July 1977, Northland submitted a “master plan” to the Forest Service for the 12 13 future development of the Snow Bowl. The plan contemplated the construction of additional 14 parking, ski slopes, new lodge facilities, and ski lifts. The Forest Service, pursuant to NEPA, 15 identified six feasible alternatives that ranged from complete elimination of artificial 16 structures in the Snow Bowl, to full development as proposed by Northland. Wilson v. 17 18 Block, 708 F.2d at 738. 19 18. In 1979, the Forest Service issued an Environmental Impact Statement (“EIS”) 20 for the Arizona Snow Bowl Ski Area Proposal and Snow Bowl Road. Trial Ex. 2757 (1979 21 22 EIS at 1). 23 19. Snowmaking was not part of the 1979 EIS. Indeed, according to the 1979 EIS: 24 many persons felt that snowfall records for the area indicated 25 marginal conditions to support proposed development. The 26 Forest Service finds there are at least 3 considerations which override this opinion. - 7 - THE SHANKER LAW FIRM, PLC. PLAINTIFFS’ FINDINGS OF FACT AND 600 EAST BASELINE ROAD, SUITE C-8 • TEMPE, AZ 85283-1210 CONCLUSIONS OF LAW TELEPHONE (480) 838-9448 • FACSIMILE (480) 838-9433 [email protected]

1 1. Existence of the area over a long period of time . . . the San Francisco Peaks has supported some type of ski facilities since 2 the late 1930’s . . . During this time, the area has certainly had lean economic times, but good business management practices by 3 the present permittee have ensured its continuance. 4 2. Prior to institution of further development, the permittee will be required to submit more detailed economic feasibility studies. 5 These studies must take into consideration the certainty of poor snow years and their impact upon the development being a 6 realistic economic venture. . .

7 Trial Ex. 2757 (1979 EIS at 177-178); see also, e.g., Id. at 68 (“Winter sports sites 8 developed primarily for skiing will not be developed unless snow and weather records show 9 that dependable, safe skiing can reasonably be expected at the site. . .”). 10

11 20. In the 1979 EIS, the Forest Service recognized and discussed, in great detail, 12 the religious significance of the San Francisco Peaks to the Navajo Nation and the Hopi 13 Tribe in particular, and acknowledged that the Peaks were sacred to other tribes as well. 14 15 Trial Ex. 2757 (1979 EIS at 57-61). 16 17 21. With regard to the Navajo, the 1979 EIS found, in part, that: 18 Doko’o-sliid (The San Francisco Peaks) in general, and Mount Humphrey in particular, are sacred to members of the Navajo 19 Tribe of Indians. Doko’o-sliid has a unique religious significance on their daily religious lives; it has complete bearing 20 on their daily personal lives and the longevity of existence for 21 these members of the tribe, and has complete connection with daily songs and prayers to their super-natural beings. 22

23 Id. at 57. 24 22. The Forest Service also recognized, in part, that “the Mountain is the mother of 25 26 the Navajo people.” Id. at 58.

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1 23. With regard to the Hopi Tribe, the Forest Service found, in part, that: 2 Nuvatukya’ovi (the San Francisco Peaks) or the Snow Peaks is, for the Hopis, the most sacred of all such places. The entire 3 Mountain is a sacred place because it is the residence of the Kachinas, supernatural beings important to the Hopi people, and 4 all other people who know of them. . . 5 Id. at 59. 6 24. On February 27, 1979, the Forest Supervisor for the Coconino National Forest 7 issued his decision to permit moderate development of the Snow Bowl under a “Preferred 8 9 Alternative,” which was not one of the six alternatives previously identified. Wilson v.

10 Block, 708 F.2d at 739. The Preferred Alternative envisioned the clearing of 50 acres of 11 forest for new ski runs, instead of the 120 acres requested by Northland. It also authorized 12 the construction of a new day lodge, improvement of restroom facilities, reconstruction of 13 14 existing chair lifts, construction of three new lifts, and the paving and widening of the Snow

15 Bowl road. Id. 16 25. On February 7, 1980, the Regional Forester overruled the Forest Supervisor 17 18 and ordered maintenance of the status quo. The Chief Forester on December 31, 1980,

19 reversed the Regional Forester and reinstated the Forest Supervisor’s approval of the 20 Preferred Alternative. Wilson v. Block, 708 F.2d at 739. 21 22 26. On March 2, 1981, the Navajo Medicinemen’s Association filed suit in the

23 District Court for the District of Columbia. The suit was consolidated with similar suits 24 brought by the Hopi Tribe and Jean and Richard Wilson, owners of a ranch located a mile 25 and a half below the Snow Bowl. Id. In the 1981 litigation, plaintiffs alleged, in pertinent 26

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1 part, that the expansion for the Snow Bowl facilities would violate the Indians’ First 2 Amendment right to the free exercise of religion, and the American Indian Religious 3 Freedom Act. Wilson v. Block, 708 F.2d at 739. 4 5 27. On June 15, 1981, the District Court granted summary judgment in favor of the 6 Forest Service on all claims except one brought under the National Historic Preservation Act. 7 On May 14, 1982, the District Court for the District of Columbia ruled that the Forest 8 9 Service achieved complete compliance and entered final judgment for the defendants on all 10 issues. Id. at 739. 11 28. This decision was subsequently appealed to the D.C. Circuit Court of Appeals, 12 1 13 which upheld the lower court ruling and issued an opinion on or about May 20, 1983. Id. 14 29. In its deliberations, the D.C. Circuit Court of Appeals confirmed, in part, that: 15 The Peaks . . . have for centuries played a central role in the 16 religions of the two tribes. The Navajos believe that the Peaks are one of the four sacred mountains which mark the boundaries 17 of their homeland. They believe the Peaks to be the home of specific deities and consider the Peaks to be the body of a 18 spiritual being or god, with various peaks forming the head, shoulders, and knees of a body reclining and facing to the east, 19 while the trees, plants, rocks, and earth form the skin. The 20 Navajos pray directly to the Peaks and regard them as a living deity. The Peaks are invoked in religious ceremonies to heal the 21 Navajo people. The Navajos collect herbs from the Peaks for use in religious ceremonies, and perform ceremonies upon the Peaks. 22 They believe that artificial development of the Peaks would impair the Peak’s healing power. 23 The Hopis believe that the Creator uses emissaries to assist in 24 communicating with mankind. The emissaries are spiritual

25 1 A discussion of the legal analysis and conclusions of the Wilson case, and other potentially relevant court decisions, is reserved for the “Conclusions of Law” portion of this 26 decision, infra.

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1 beings and are generally referred to by the Hopis as “Kachinas.” The Hopis believe that for about six months each year, 2 commencing in late July or early August and extending through mid-winter, the Kachinas reside at the Peaks. During the 3 remaining six months of the year the Kachinas travel to Hopi villages and participate in various religious ceremonies and 4 practices. The Hopis believe that the Kachinas’ activities on the 5 Peaks create the rain and snow storms that sustain the villages. The Hopis have many shrines on the Peaks and collect herbs, 6 plants and animals from the Peaks for use in religious ceremonies. The Hopis believe that use of the Peaks for 7 commercial purposes would constitute a direct affront to the Kachinas and to the Creator. 8 Wilson v. Block, 708 F.2d at 738 9 10 30. Further, according to the D.C. Circuit, “[t]he parties have stipulated that the 11 plaintiffs’ beliefs are religious and are sincerely held, and the record contains abundant 12 evidence supporting that stipulation.” Id. at 740. 13 14 2. Developments at Snowbowl From Approximately 1982 Through Approximately 2002 15 31. In 1982, the Hart Prairie Chairlift was built. Trial Ex. 2780 (FEIS at 1-3). 16

17 32. Fairfield Communities purchased the ski area in November, 1982 and began an 18 improvement program in 1983, including construction of the Hart Prairie Lodge, Sunset 19 Chairlift and transfer of the rope tow back to Hart Prairie. In 1985, parking lots #5 and #6 20 21 were completed along with a new maintenance shop. In 1986, a new CTEC triple chairlift

22 was installed on the site of the original Agassiz Chairlift; the rope tow and the Poma were 23 removed and the Aspen Chairlift was installed in Hart Prairie. A two-year Snowbowl Road 24 improvement and paving project began in 1988. Trial Ex. 2780 (FEIS at 1-3). 25 26

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1 33. Arizona Snowbowl Resort Limited Partnership (“ASR”), the 2 intervenor/defendant in the instant case, purchased the ski area in December 1992. ASR 3 operates the ski area under a 777-acre Forest Service-issued Special Use Permit (“SUP”), 4 5 which is renewed on a 40-year basis. Trial Ex. 2780 (FEIS at 1-3; and 1-2). 6 34. After purchasing the area, ASR made improvements to the facilities and ski 7 trails. In part, Hart Prairie Lodge was expanded by constructing a new guest service office, 8 9 rental shop, and children’s ski school. Logjam (trail #25) was widened and new trails – Lava 10 (trail #43c) and Volcano (trail #43a) were constructed. Trial Ex. 2780 (FEIS at 1-3). 11 12 B. THE PROJECT AT ISSUE IN THE INSTANT CASE 13 35. In 2002, ASR initiated the process of having the Forest Service approve a 14 significant, additional expansion to the Snowbowl Ski area, which required preparation of an 15 Environmental Impact Statement under NEPA. A “scoping” letter, initiating the review 16 process under the National Environmental Policy Act (“NEPA”) for ASR’s proposed 17 18 expansion, was sent out by the Forest Service in September 2002. AR Vol. 3, Tab 37 (SOF 19 Ex. at 20-25). 20 36. On February 2, 2004, the Forest Service issued its Arizona Snowbowl 21 2 22 Facilities Improvements Draft Environmental Impact Statement (“DEIS”). The DEIS 23 identified the “Purpose and Need” for the project as: (a) “to ensure a consistent and reliable 24

25 2 The parties stipulated to the admission of the entire Draft Environmental Impact Statement (“DEIS”) into evidence. It appears, however, that actual admission of the 26 document may have been mistakenly overlooked. See Trial Transcript at 170 lines 1-7.

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1 operating season, thereby maintaining the economic viability of the Snowbowl, and 2 stabilizing employment levels and winter tourism within the local community;” and (b) “to 3 improve safety, skiing conditions, and recreational opportunities, bringing terrain and 4 5 infrastructure into balance with current use levels.” DEIS at 1-5 to 1-6; Trial Ex. 2780 (FEIS 6 at 1-6 to 1-7). 7 37. A summary of the proposed action in the DEIS included, in part: (a) 8 9 approximately 205 acres of snowmaking coverage throughout the SUP area utilizing 10 reclaimed sewage effluent as a source; (b) a 10 million-gallon snowmaking reclaimed waste 11 water reservoir near the top terminal of the existing Sunset Chairlift; (c) relocate the existing 12 Sunset Chairlift as the Humphreys Chairlift, accessing a pod of proposed ski trails; (d) 13 14 upgrade and realignment of the Aspen Chairlift; (e) approximately 74 acres of new trails; (f) 15 approximately 47 acres of thinning; (g) approximately 87 acres of grading/stumping and 16 smoothing; (h) enlarge the Hart Prairie Lodge by approximately 6,000 square feet to a total 17 of 24,900 square feet; (i) construct a new 10,000 square foot guest services facility; (j) 18 19 construct a 2,500 square foot Native American cultural and education center; (k) construct a 20 14.8-mile pipeline to transport reclaimed waste water from Flagstaff to Snowbowl; and (l)

21 install snowmaking pipelines buried within existing and proposed trails. DEIS at 1-8 to 1-9; 22 see Trial Ex. 2780 (FEIS at 1-9 to 1-10). 23 24 38. According to the DEIS, the “San Francisco Peaks are of traditional cultural and

25 spiritual significance to several Indian Tribes, including the Hopi, Navajo . . . Hualapai, 26

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1 Havasupai, Yavapai-Apache . . . [and] White Mountain Apache.”3 DEIS at 3-6; see Trial 2 Ex. 2780 (FEIS at 3-7); see also, e.g., Trial Ex. 3(a) (DEIS at 1-11) (“The San Francisco 3 Peaks are central to the cultures and religious practices of many Native American tribes. . .”). 4 5 39. The Forest Service found, in the DEIS, that “[t]he San Francisco Peaks are 6 associated with cultural practices and beliefs of living native American communities that are 7 rooted in their history and are important in maintaining the continuing cultural identity of 8 9 their community.” Trial Ex. 3(b) (DEIS at 3-4); see also, e.g., DEIS at 3-6 (Tribes “are still 10 actively using [the Peaks] in both historic and religious contexts.”). 11 40. Further, according to the DEIS, “Pilles identifies nine significant qualities that 12 13 characterize the Peaks for the tribes. These qualities include: (1) they are the abode of 14 deities and other spirit beings; (2) they are the focus of prayers and songs whereby humans 15 communicate with the supernatural; (3) they contain shrines and other places where 16 ceremonies and prayers are performed; (4) they are the source of water; (5) they are the 17 18 source of soil, plant, and animal resources that are used for ceremonial and traditional 19 purposes; (6) they mark the boundaries of traditional or ancestral lands; (7) they form a

20 calendar that is used to delineate and recognize the ceremonial season; (8) they contain 21 places that relate to legends and stories concerning the origins, clans, traditions, and 22 23 ceremonies of various Southwestern tribes; and (9) they contain sites and places that are 24

25 3 The studies of Peter Pilles, Coconino National Forest Archeologist, are extensively cited throughout the DEIS vis-à-vis the relationship of the Peaks to the Tribes. The Court notes 26 that Mr. Pilles was not called as a witness by the Forest Service in this case.

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1 significant in the history and cultural practices of various tribes.” DEIS at 3-6; see Trial Ex. 2 2780 (FEIS at 3-7 to 3-8). 3 4 41. With regard to each of the plaintiff tribes, the DEIS further provides that “[t]he 5 entire earth is sacred; it is seen as the source of life. Some parts of the natural world, such as 6 the San Francisco Peaks, are accorded special reverence. These special places may be where 7 gods originated or where they live or where individuals or leaders may communicate with 8 9 spiritual forces. Thus, the relationship between native people and their lands is central and 10 indispensable to their religion, culture, and way of life.” DEIS at 3-7; see Trial Ex. 2780 11 (FEIS at 3-7). 12 13 42. Specifically with regard to the Hopi, the DEIS provides, in part, that: “[a]ll of 14 the religious ceremonies encompassed within Nuvatukyaovi demonstrate the sacred 15 relationship of the Peaks to the Hopi people. . . The San Francisco Peaks are the spiritual 16 essence of what Hopis consider to be among the most sacred landscapes in Hopi religion, the 17 18 spiritual home of the Kachina . . . The ceremonies associated with the Peaks, the plants and 19 herbs gathered on the Peaks, and the shrines and ancestral dwellings located on the Peaks are

20 of central importance to the religious beliefs and practices of the Hopi People.” DEIS at 3-8; 21 see Trial Ex. 2780 (FEIS at 3-9). 22 23 43. Specifically with regard to the Navajo, the DEIS provides, in part, that: the

24 Peaks are the sacred mountain of the west, Doko’oo’slid, ‘Shining on Top,’ a key boundary 25 marker and a place where medicine men collect herbs for healing ceremonies. . . Pilles notes 26

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1 that some indication of the importance of the San Francisco Peaks to Navajo in their daily 2 lives can be seen from study of Navajo uses of the National Forests of northern Arizona . . 3 In other words, sacred places, preeminently the San Francisco Peaks, play an important role 4 5 in the lives of at least 37 percent of the Navajo people living in northern Arizona.” DEIS at 6 3-9 to 3-10; see Trial Ex. 2780 (FEIS at 3-11 to 3-12). 7 44. The Forest Service has also recognized, in part, with regard to the use of 8 9 reclaimed wastewater, that: 10 [f]rom both a Hopi and Navajo perspective, the plants within and down slope of the Snowbowl SUP area that would be affected by 11 reclaimed water may no longer be viable for use in sacred ceremonies or for medicinal purposes, thus affecting Hopi and 12 Navajo ability to perform ceremonies properly and keep their religion alive . . . Both groups strongly believe that wastewater 13 cannot be purified in a way that does not impact the cultural and 14 spiritual value of the Peaks, and that the use of reclaimed water on the Peaks would adversely affect the spirits that reside there. 15 These concerns are focused on spiritual and cultural issues, not the actually biological purity of the water itself. 16 DEIS at 3-16; see Trial Ex. 2780 (FEIS at 3-17) 17 18 45. The Forest Service also opined as to the impact on the plaintiff tribes resulting 19 from ground disturbing activities. Thus, according to the Forest Service:

20 [i]f one regards the Peaks as a living entity, as believed by the Native American tribes that consider it sacred, any additional 21 ground disturbances and vegetation removal would be considered 22 as harming them. . . An example of the Hopi perspective on additional development within the SUP area can be gained from 23 the December 2002 public meeting, in which Raleigh Pooyouma noted that these are the only sacred peaks the Hopis have . . . He 24 stated, “Development is like cutting the heart and blood vessels of a living being.” 25 DEIS at 3-19; see Trial Ex. 2780 (FEIS at 3-21). 26

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1 46. According to the Forest Service, “[t]he Navajo consider the Peaks to be a 2 living entity . . . To alter the landscape then would harm this living being. The amount of 3 harm is not an issue; any harm to the Peaks will affect all the living things that reside there.” 4 5 DEIS at 3-22; Trial Ex. 2780 (FEIS at 3-23). 6 47. Further, with regard to the tribal plaintiffs, the Forest Service notes in the 7 DEIS, that: “[a]lthough there is no evidence for the presence of any plants of traditional 8 9 importance within the Snowbowl SUP area, the removal of 76 acres of vegetation would 10 affect the integrity of the Peaks and therefore impact its sacred values. Ground disturbance 11 within the SUP area, especially the 10 acres of permanent ground disturbance, would impact 12 the sacred values of the Peaks and their spiritual nature.” DEIS at 3-20; see Trial Ex. 2780 13 14 (FEIS at 3-21). 15 48. The Final Environmental Impact Statement (“FEIS”) was issued in February 16 2005. Trial Ex. 2780. 17 18 49. The selected alternative was generally the same as the proposed alternative,

19 with some minor modification. The selected alternative included, in part: (a) approximately 20 205 acres of snowmaking coverage throughout the area, utilizing reclaimed sewage effluent; 21 22 (b) a 10 million-gallon snowmaking reclaimed waste water reservoir near the top terminal of 23 the existing Sunset Chairlift and catchment pond below the Hart Prairie Lodge; (c)

24 construction of a reclaimed water pipeline between Flagstaff and Snowbowl with booster 25 stations and pump houses; (d) construction of a 3,000 to 4,000 square foot snowmaking 26

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1 control building; (e) construction of a new 10,000 square foot guest services facility; (f) an 2 increase in skiable acreage from 139 acres to approximately 205 acres – an approximate 47% 3 increase; and (g) approximately 47 acres of thinning and 87 acres of grading/stumping and 4 5 smoothing. Trial Ex. 2781 (ROD at 10-15). 6 50. Essentially all of the discussion and findings regarding the religious 7 significance of the Peaks to the plaintiff tribes set forth in the DEIS, are reiterated in the 8 FEIS. Trial Ex. 2780 (FEIS at 3-7 to 3-13; FEIS at 3-15 to 3-17; FEIS at 3-23). 9 10 51. In selecting Alternative Two, the Forest Service sums up the impact to the 11 religious practices of the tribes as follows:

12 the additional ground disturbance and use of reclaimed water that 13 would result from Alternative 2 would further contaminate the spiritual purity of the entire Peaks beyond the historic and 14 existing levels. The Hopi, Navajo, and other tribes have existed in the region of the San Francisco Peaks for thousands of years 15 and have developed their cultures and religious institutions 16 around the natural and cultural landscape of the San Francisco Peaks. Traditions, responsibilities, and beliefs that delineate who 17 they are as a people, as a culture, are based on conducting ritual ceremonies they are obligated to perform as keepers of the land. 18 These obligatory activities focus on the Peaks, which are a physical and spiritual microcosm of their cultures, beliefs, and 19 values. Snowmaking and expansion of facilities, especially the 20 use of reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and 21 continue to be, the basis for the cultural identity for many of those tribes. 22 Trial Ex. 2780 (FEIS at 3-18). 23

24 52. On April 25, 2005, plaintiffs administratively appealed the Forest Service 25 decision approving the project as was set forth in Alternative 2 of the FEIS. In their appeals, 26

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1 plaintiffs asserted, in pertinent part, that the Forest Service failed to comply with RFRA. 2 There were approximately 30 formal appeals filed with the Forest Service – many 3 representing multiple parties. 4 5 53. On June 8, 2005, the Forest Service, and particularly defendant Mr. Forsgren 6 as the appeal deciding officer and Regional Forester, responded to and, essentially, 7 rejected/denied these appeals. In pertinent part, Mr. Forsgren denied plaintiffs claims that 8 9 the project would have a “substantial burden” on their ability to practice their religion. Trial 10 Exs. 1049, 1050, 1051, and 1052. 11 12 1. Procedural Background in the Instant Litigation 13 54. The Complaint for the Navajo Nation and the Sierra Club was initially filed on 14 June 17, 2005. On June 23, 2005, before the Complaint was served, the Navajo plaintiffs 15 filed a First Amended Complaint that added the White Mountain Apache Tribe, the Yavapai- 16 Apache Tribe, the Center for Biological Diversity and the Flagstaff Activist Network as 17 18 additional plaintiffs. 19 55. Shortly thereafter, three separate Complaints were filed by: (1) Hualapai Tribe, 20 Norris Nez, and Bill Bucky Preston; (2) Rex Tilousi, Dianna Uqualla, and the Havasupai 21 22 Tribe; and (3) Hopi Tribe. On unopposed motion, these matters were transferred and 23 consolidated to the instant action. 24 56. The Court heard argument on plaintiffs’ motions for preliminary injunction on 25 26 or about July 13, 2005. At the close of arguments, defendants agreed to stay any work on the

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1 project pending resolution of this matter pursuant to an agreed upon expedited briefing 2 schedule. 3 4 57. The Court heard oral argument on Cross-Motions for Summary Judgment 5 regarding the APA-based claims and the RFRA claims on October 6, and October 7, 2005. 6 At that time, the Court took these matters under advisement. 7 8 58. A Bench trial was held between October 12, 2005 and November 15, 2005, on 9 the RFRA Claims. 10 11 C. TRIAL TESTIMONY ON THE IMPACT OF THE PROJECT AND THE RELIGIOUS SIGNIFICANCE OF THE SAN FRANCISCO PEAKS TO THE 12 PLAINTIFF TRIBES 13 59. The Tribes and the Forest Service provided witnesses that attested to the

14 religious significance of the Peaks. 15 16 1. Testimony of General Application to All the Plaintiff Tribes 17 60. The Forest Service called two archeologists as witnesses, Dr. Judith Propper

18 and Heather Provencio, who discussed, in part, the impacts of the project on Native 19 American religious practices and the significance of the Peaks to the tribes. 20 21 61. Dr. Propper is the Forest Service, Regional Archeologist for the Southwestern

22 Region. 23 62. Dr. Propper confirmed that the Peaks are central and indispensable to the 24 25 tribes’ religious practices. Trial Transcript at 1608 lines 15-17. Dr. Propper agreed that the

26 tribes view the San Francisco Peaks: (a) as a home of spiritual beings; (b) a place where

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1 significant mythological events occurred; (c) a place where spirits of the dead went to be 2 changed into bringers of rain; (d) a personification of gods and goddesses; (e) an area where 3 important societies originated; and (e) as a source of life. Trial Transcript at 1627 lines 19- 4 5 25; 1628 lines 1-11. 6 63. Dr. Propper confirmed that the tribes view the San Francisco Peaks as a single 7 being or entity. She also confirmed the tribes’ belief that you cannot hurt or harm a piece of 8 9 the Peaks without affecting the whole entity. Trial Transcript at 1610 lines 20-22; 1611 lines 10 8-14; 1611 lines 23-25; 1612 lines 1-7. 11 64. Dr. Propper further confirmed that the Tribe’s believe that the project at issue 12 13 will have a “devastating impact on their culture and religion.” Trial Transcript at 1615 lines 14 14-17. 15 65. Heather Provencio is the Forest Service Zone Archeologist for the Peaks and 16 17 Mormon Lake Districts. She was the lead archeologist for tribal consultation on the 18 Snowbowl proposal. Trial Transcript at 1181 lines 1-3; 1182 lines 23-25. 19 66. Ms. Provencio testified that the types of Native American religious practices 20 21 that occur on the San Francisco Peaks range from the collection of traditional plants, both for 22 ceremonial and traditional, medicinal use, to members actually conducting healing

23 ceremonies and religious ceremonies on the Peaks. Trial Transcript at 1220 lines 13-18. 24 25 67. Ms. Provencio testified that she would have selected Alternative 3, which did 26 not include snowmaking. This was based on her analysis of effects to tribal values and on

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1 her experience with NEPA. Ms. Provencio stated that she believed that Alternative 3, 2 “meets the purpose and need, but at the same time recognizes the tribal concerns.” Trial 3 Transcript at 1233 lines 21-25; 1234 lines 1-11; 1239 lines 11-22. 4 5 68. Ms. Provencio confirmed that the region’s Indian tribes are opposed to the 6 concept of creating snow by artificial means, particularly through the use of reclaimed water, 7 because it would negatively affect the spiritual values of the entire San Francisco Peaks. 8 9 Trial Transcript at 1270 lines 18-25; 1271 lines 1-2; 1271 lines 9-11. 10 69. Ms. Provencio also confirmed that the proposed ground disturbances within the 11 SUP area associated with the project would, from the Native American perspective, scar the 12 13 entire sacred mountain which is believed to be a living entity. Trial Transcript at 1271 lines 14 19-25; 1272 lines 1-4; 1272 lines 8-10. 15 70. Plaintiff Tribal members expressed concerns that the sources of waste for the 16 17 Rio De Flag wastewater treatment plant included water that may contain spirits of the dead. 18 See e.g. Trial Transcript at 247 lines 8-14; Trial Transcript at 31 lines 21-23. 19 71. Robin Harrington, City of Flagstaff Industrial Waste Supervisor, testified that 20 21 mortuaries and morgues discharge human blood and formalin into the sanitary sewer for the 22 City of Flagstaff. Trial Transcript at 71 line 23; 72 line 1; see also Trial Ex. 17a-d. 23 72. Ron Doba, City of Flagstaff Utilities Director, testified that the sources for the 24 25 Rio de Flag wastewater treatment plant include: SCA Tissue, Gore, Flagstaff Medical 26 Center, the City Morgue, and Norvel Owens Mortuary. Trial Transcript at 1464 line 15;

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1 1471 lines 21-25 to 1472 line 1; 1524 lines 21-25 to 1525 lines 1-2; see also Trial Ex. 42, 2 42a-d. 3 4 a. The San Francisco Peaks, Including the SUP Area, Have been Identified as a Traditional Cultural Property (“TCP”). 5 73. The Forest Service has identified the San Francisco Peaks as a Traditional 6 7 Cultural Property (“TCP”) as defined in National Register Bulletin 38: Guidelines for

8 Evaluating and Documenting Traditional Cultural Properties (Trial Ex. 1034). The Peaks 9 have also been determined eligible for inclusion on the National Register of Historic Places. 10 Trial Ex. 2780 (FEIS at 3-6). 11

12 74. “A TCP is a place that is associated with the cultural practices or beliefs of a 13 living community. Those practices or beliefs must be rooted in the history of the community 14 and be important in maintaining the continuing cultural identity of the community. While 15 16 not all TCPs are eligible for the National Register, a TCP is eligible if the property plays a

17 role in a community’s historically rooted beliefs, customs, and practices and meets one of 18 four National Register Criteria for significance: (A) associated with significant events; (B) 19 associated with a significant person; (C) is an outstanding example of a type; or (D) is 20 21 associated with information contained in an archeological site.” Trial Ex. 2780 (FEIS at 3-

22 6), quoting Trial Ex. 1034 (Bulletin 38 of the National Historic Preservation Act). 23 75. Ms. Provencio confirmed that the Special Use Permit area or SUP area, where 24 25 Snowbowl is located, is part of the TCP and that when the TCP is being discussed, that 26 includes the SUP area. Trial Transcript at 1274 lines 21-25; 1275 line 1; 1275 lines 16-19.

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1 76. Bulletin 38 (Trial Ex. 1034) provides that “[t]raditional cultural values are 2 often central to the way a community or group defines itself, and maintaining such values is 3 often vital to maintaining the group’s sense of identity and self respect. Properties to which 4 5 traditional cultural value is ascribed often take on this kind of vital significance, so that any 6 damage to or infringement upon them is perceived to be deeply offensive to, and even 7 destructive of, the group that values them.” See also, Trial Transcript at 1276 lines 3-10. 8 9 77. Ms. Provencio testified that she agreed with the above description of cultural 10 values and the role of properties to which traditional cultural value is ascribed. She also 11 confirmed that she believed this to be applicable to the instant case and how the tribes 12 perceive any damage to or infringement upon the San Francisco Peaks. Trial Transcript at 13 14 1277 lines 3-14. 15 78. Ms. Provencio also testified that she agreed with the statements made about 16 ethnocentrism in Bulletin 38 as they apply to this case. Bulletin 38 provides, in part, that, 17 18 “[e]thnocentrism means viewing the world and the people in it from the point of view of 19 one’s own culture and being unable to sympathize with the feelings, attitudes, and beliefs of

20 someone who is a member of a different culture. It is particularly important to understand, 21 and seek to avoid, ethnocentrism in the evaluation of traditional cultural properties . . . For 22 23 example, there may be nothing observable to the outsider about a place regarded as sacred by 24 a Native American group. Similarly, such a group’s belief that its ancestors emerged from

25 the earth at a specific location at the beginning of time may contradict Euroamerican 26

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1 science’s belief that the group’s ancestors migrated to North America from Siberia. These 2 facts in no way diminish the significance of the locations in question in the eyes of those 3 who value them; indeed, they are irrelevant to their significance. . . It is vital to evaluate 4 5 properties thought to have traditional cultural significance from the standpoint of those who 6 may ascribe such significance to them, whatever one’s own perception of them, based on 7 one’s own cultural values may be.” Trial Transcript at 1276 line 25; 1277 lines 1-25; 1278 8 lines 1-5. 9 10 79. Bulletin 38 actually identifies the San Francisco Peaks as an example of a well 11 known traditional cultural property. Thus, according to the Bulletin, “[t]he San Francisco 12 Peaks in Arizona, for example, are extensively documented and widely recognized as a place 13 14 of extreme cultural importance to the Hopi, Navajo, and other American Indian people of the 15 Southwest. . .” 16 80. Ms. Provencio concurred that the extreme cultural significance of the Peaks to 17 18 the tribes of the southwest has been extensively documented and widely recognized. Trial 19 Transcript at 1279 lines 3-14. 20 81. Ms. Provencio also confirmed that the Peaks, including the SUP area, should 21 22 be recognized and preserved because of their significance to the Native American 23 communities in the area. Trial Transcript at 1279 lines 9-25; 1280 lines 1-9. 24 25 26

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1 82. It is well settled, and the Forest Service admits, that “[t]he San Francisco Peaks 2 are sacred to at least 13 formally recognized tribes (including plaintiffs) that are still actively 3 using the Peaks in cultural, historic, and religious contexts.” Trial Ex. 2780 (FEIS at 3-7). 4 5 2. Tribe-Specific Testimony Regarding the Importance of the Peaks and the 6 Impacts of the Project 7 a. Testimony on the Impacts on the Navajo Religion 8 83. Plaintiffs collectively produced four witnesses to testify about the importance

9 of the Peaks to the Navajo religion and the impact of the project. These included: (a) Steven 10 Begay (Assistant Department Director of the Historic Preservation Department for the 11 Navajo Nation and Navajo Medicine Man); (b) Larry Foster (member of the Navajo Nation, 12 13 practitioner of the Navajo religion, assistant to a Navajo Medicine man); (c) Norris Nez

14 (Navajo Medicine Man and named Plaintiff in this case) – through a Navajo interpreter; and 15 (d) Joe Shirley, Jr. (President of the Navajo Nation). 16 17 84. Larry Foster, Steven Begay, and President Joe Shirley, Jr. testified that the San

18 Francisco Peaks are one of four sacred mountains for the Navajo people. Trial Transcript at 19 191 lines 8-9; 738 line 25 to 739 line 2; 824 line 11. 20 85. Steven Begay and Larry Foster both testified that the four sacred mountains 21 22 mark the land created for the Navajo people to live, and each sacred mountain represents a

23 religious principle. Trial Transcript at 739 lines 3-23; 197 lines 11-16. 24 25 26

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1 86. Larry Foster, Steven Begay, and Norris Nez all testified that in the Navajo 2 religion, the creation of the Navajo people took place at the San Francisco Peaks. Trial 3 Transcript at 198 line 22 to 199 line 15; 747 lines 16-20; 883 lines 22-25. 4 5 87. President Joe Shirley, Jr. in his testimony confirmed that the testimony of 6 Steven Begay was an accurate depiction of the Navajo belief system, and further testified 7 that the San Francisco Peaks are considered in Navajo culture and religion to be the “Mother 8 to Navajo People.” Trial Transcript at 799 lines 2-5; 802 line 18. 9 10 88. Norris Nez testified that the Navajo people were “created and we were made to 11 live around the base of [the San Francisco Peaks]. And from [the Peaks] came our medicine 12 to have good health, good water and to live a good life.” The Peaks hold “medicine and 13 things to make us well and healthy. We suckle from [the Peaks] and get well when we 14 15 consider [them] our Mother.” Trial Transcript at 883 lines 7-10; 894 lines 8-10. 16 89. President Joe Shirley, Jr. testified that the San Francisco Peaks are an integral 17 part of Navajo life. The Peaks are their essence, their home, their mother. The whole of the 18 Peaks is the holiest of shrines in the Navajo way of life. Trial Transcript at 799 lines 14-17; 19 20 802 lines 16-17; 804 lines 18-20. 21 90. Steven Begay testified that the San Francisco Peaks in the Navajo religion

22 represent a person’s ability to provide for one’s self and family, and represents the 23 procreation of all living things (humans, animals, plants, etc) – the life pattern. Trial 24 25 Transcript at 741 lines 3-7. 26

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1 91. Steven Begay testified that the San Francisco Peaks are home to many of the 2 Navajo people’s deities. He listed some of the deities that, according to the Navajo religion, 3 exist on the San Francisco Peaks as White Corn Girl, White Corn Boy, Twilight Girl, and 4 5 Twilight Boy, and Yellow Wind. Trial Transcript at 739 lines 6-18; 747 line 25 to 748 line 6 5. 7 92. Steven Begay testified that it is the belief of the Navajo people that medicine 8 plants on the San Francisco Peaks are all connected. The Navajo belief is that they are all 9 10 part of the mountain and the mountain cannot be separated. Trial Transcript at 756 line 6 to 11 757 line 2. 12 93. Norris Nez testified that all of the San Francisco Peaks are holy. “[The Peaks 13 are] like a body. It is like our body. Every part of it is holy and sacred.” Trial Transcript at 14 15 913 lines 6-7. 16 94. Larry Foster testified that Changing Woman’s puberty ceremony occurred at 17 San Francisco Peaks. Trial Transcript at 198 lines 1-3; 197 lines 17-19. 18 95. Steven Begay testified that the deity known as Changing Woman is “the 19 20 Mother of the People.” Trial Transcript at 746 lines 7-10. 21 96. Larry Foster testified that the Changing Woman and the Creator, Sun god,

22 were the parents of twins that were born on the San Francisco Peaks. “Changing Woman 23 instructed [the twins] to go back to the Peaks to retrieve the [medicine bundles] to take them 24 25 to offer prayers, ceremonies. From that point on then they would go on their journey, their 26 quest to find their [Creator].” Trial Transcript at 199 lines 3-15.

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1 97. Larry Foster testified that the medicine bundle tradition is continued to this day 2 by Navajo medicine people. Trial Transcript at 200 lines 5-9. 3 98. President Joe Shirley, Jr. testified that the Blessingway ceremony “is the main 4 5 ceremony that ties … all ceremonies together. And that's very much a part of … the San 6 Francisco Peaks.” Trial Transcript at 799 line 24 to 800 line 2. 7 99. Steven Begay testified that medicine bundles are an integral part of the 8 Blessingway ceremony. “The prayer is said while the person is holding the medicine 9 10 bundle… [T]hose prayers specifically request from … the four mountains, strength and to 11 restore themselves, restore their mind, and make them live in harmony.” Trial Transcript at 12 745 line 23 to 746 line 6. 13 100. Larry Foster testified that in their ceremonies, the Navajo medicine bundle sits 14 15 to the west, representing the San Francisco Peaks. Trial Transcript at 198 lines 24-25. 16 101. Larry Foster testified that the medicine bundles consist of several parts that 17 come from the San Francisco Peaks. These parts include sacred soils, herbs called medicine, 18 and sacred stones, and are put together in a four-day purification ceremony performed by 19 20 Medicine people and the keeper of the bundle. Trial Transcript at 210 line 10 to 211 line 5. 21 102. Steven Begay testified that the Navajo people use the medicine bundles in

22 order to “pray the prayers of the mountains”. To facilitate these prayers, “the soil from the 23 mountain is in [the bundle so that] we are speaking directly to the mountain.” Trial 24 25 Transcript 744 lines 17-23. 26

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1 103. Norris Nez testified that the medicine bundles “are like conduits to the heavens 2 so our prayers can be heard.” Trial Transcript at 889 lines 16-17. 3 104. Larry Foster testified that in the Navajo culture, “[people] live in the 4 5 blessingway, in harmony. We try to walk in harmony, be in harmony with all of nature. 6 And we go to all of the sacred mountains for protection. We go on pilgrimage similar to 7 Muslims going to Mecca. And we do this with so much love, commitment and respect. And 8 if one mountain – and more in particularly with the San Francisco Peaks – which is our 9 10 bundle mountain, our sacred, bundle mountain, were to be poisoned or given foreign 11 materials that were not pure, it would create an imbalance – there would not be a balance 12 among the sacred mountains… We just wouldn’t be able to exist. I wouldn’t be able to do 13 pilgrimages anymore.” Trial Transcript at 205 line 22 to 207 line 5. 14 15 105. Norris Nez testified that soil from the San Francisco Peaks is central to the 16 Blessingway ceremony. It represents good health, good weather and plants, and symbolizes 17 happiness. The proposed project will create imbalance and a major disturbance that will ruin 18 the soil from the San Francisco Peaks. This project will ruin the Blessingway ceremony and 19 20 hoz ho (healthy state, being complete) because “bad is going to be put on [the Peaks].” The 21 manmade snow will ruin the plants, the water, and the earth on the San Francisco Peaks. “It

22 will have ill effects on everything.” Trial Transcript at 890 lines 19-20; 891 line 7; 896 lines 23 2-7; 896 line 17 to 897 line 16. 24 25 106. Larry Foster testified that the current development on Snowbowl is equivalent 26 to a scar, however, if the Facilities Improvement Project is allowed to go forward, it would

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1 be akin to “a prick … from a contaminated needle, it doesn’t matter what the percentage is, 2 your whole body would then become contaminated.” Trial Transcript at 205 lines 2-16; 214 3 lines 15-18. 4 5 107. Larry Foster testified that if the San Francisco Peaks were poisoned, it would 6 create an imbalance and he would no longer be able to obtain herbs or medicines for these 7 ceremonies, as the mountain would be impure. The imbalance caused by the project will 8 cause the entire Navajo culture to come out of balance. The Navajo would lose their culture, 9 10 identity, language, songs, ceremonies, and their protection, as well as cause past traditional 11 medicine bundles to have no further religious, cultural, or historical meaning. Any use of 12 artificial snow under the proposed project would make the mountain unusable for Navajo 13 religious purposes, because the mountain is a living entity. The Navajo would be unable to 14 15 create the medicine bundle if this project went forward because the mountain would be 16 contaminated and the sacred soils, herbs, and sacred stones from that mountain would not be 17 usable. Trial Transcript at 206 lines 3-10; 206 lines 22-25; 208 lines 19-22; 209 lines 12-20; 18 211 lines 1-12; 214 line 21 to 215 line 2. 19 20 108. Steven Begay testified that the proposed use of reclaimed wastewater to make 21 snow “will significantly impact Navajo life. We don’t separate our religion from our daily

22 lives and this project will contaminate what we as Navajos in our teaching and in our minds 23 believe the peaks to be a pristine environment. And so ripping out more trees and creating 24 25 artificial snow will definitely impede and impact our beliefs in what that mountain means to 26 our people.” Trial Transcript at 753 lines 13-19.

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1 109. President Joe Shirley, Jr. testified that the use of the reclaimed water on the 2 San Francisco Peaks would be a desecration of the Mother of the Navajo people, and would 3 be like a child watching her mother be raped. Trial Transcript at 802 lines 11-21. 4 5 110. Larry Foster testified that water from the San Francisco Peaks is used in the 6 kinaalda ceremonies performed as a rite of passage for Navajo women and practiced for the 7 purpose of continued life for the Navajo people. This water would be contaminated if the 8 proposed project was allowed to go forward, and this integral part of the Navajo religion 9 10 could no longer be practiced. Trial Transcript at 207 line 6 to 208 line 2; 197 line 17 to 198 11 line 3. 12 111. President Joe Shirley, Jr. testified that his mother, the whole of the San 13 Francisco Peaks, might not be able to help him if this project went forward. Trial Transcript 14 15 at 802 lines 24-25; 803 lines 1-2. 16 b. Testimony on the Impacts on the Hopi Religion 17 112. Plaintiffs collectively produced five witnesses to testify about the importance 18 19 of the Peaks to the Hopi tradition, culture, and religion, and the impact of the proposed 20 expansion project on their tradition, culture and religion. These witnesses included: (a) 21 Leigh Kuwanwisiwma; (b) Wilton Kooyahoma; (c) Antone Honanie; and (d) Emory 22 Sekaquaptewa; and (e) Bill Bucky Preston (named Plaintiff in this case). 23 24 113. Leigh Kuwanwisiwma is a 55 year old member of the Hopi Tribe, a member of 25 the Greasewood Clan, a lifelong practitioner of Hopi culture and religion, a member of the 26

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1 Kachina Society, and the Hopi Tribe’s Cultural Preservation Officer. Trial Transcript at 413, 2 lines 24-25; 414, lines 4-25; 415, line 1; 416, lines 18-25. 3 114. Wilton Kooyahoma is a 69 year old member of the Hopi Tribe, a member of 4 5 the Fire Clan, and a member of the Kachina and One Horn Societies and a lifelong 6 practitioner of Hopi culture and religion. Trial Transcript at 535, lines 7-8, 11-15, 19-20; 7 536, lines 20-21; 537, line 6. 8 115. Antone Honanie is a 33 year old member of the Hopi Tribe, a member of the 9 10 Water Clan, a member of the Kachina society, a resident of the Village of Kykotsmovi and a 11 lifelong practitioner of Hopi culture and religion. Trial Transcript at 555, lines 5-16; 556, 12 lines 4-8; 557, lines 2-11. 13 116. Emory Sekaquaptewa is a 77 year old member of the Hopi Tribe, a member of 14 15 the Eagle Clan, a member of the Kachina society, a Professor of Anthropology at the 16 University of Arizona, and a lifelong practitioner of Hopi culture and religion. Trial 17 Transcript at 572, lines 4-15; 573, lines 1-2, 6-7, 11-24; 575, lines 3-7. 18 117. Mr. Kuwanwisisma’s employment with the Hopi Tribe requires his 19 20 understanding of Hopi culture generally, as well as interaction with members of the Hopi 21 Tribe from various clans, villages, ages, and understandings of Hopi traditional, religious,

22 and cultural practices. Trial Transcript at 416, lines 12-15; 417, lines 1-25; 418, lines 1-11. 23 Mr. Kuwanwisiwma also participated on behalf of the Hopi Tribe in consultations with the 24 25 United States Forest Service regarding the proposed expansion of the Snow Bowl. Trial 26 Transcript at 421, lines 1-10.

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1 118. Mr. Kuwanwisiwma testified in general regarding the Hopi traditional 2 matrilineal clan system, the nature of the Kachina Society and initiation into its practices, 3 and the nature and purpose of Hopi kivas as the background of Hopi traditional cultural and 4 5 Kachina religious practices. Trial Transcript at 418, lines 14-25; 419, lines 9-25; 420, lines 6 11-19; 429, lines 4-13, 20-25; 430, lines 1-7. 7 119. Mr. Kooyahoma testified about how he was initiated into Hopi religious and 8 cultural practices starting in 1948, and spent his life training to perform his cultural duties to 9 10 his farm, his religion, and the Kachina. He has been prepared to someday be a priest in the 11 One Horn Society. He is a caretaker and father to the Kachinas. Trial Transcript at 538, 12 lines 6-15; 539, lines 12-20; 543, lines 9-10. 13 120. Mr. Honanie testified to the process of how Hopis learn about the Kachinas, 14 15 what they mean to the Hopi, and how they relate to Hopi religion and culture. Trial 16 Transcript at 558, lines 17-24; 559, lines 14-19; 560, lines 2-11. 17 121. Mr. Sekaquaptewa explained the significance of Hopi songs taught to all Hopis 18 and their relation to the Kachinas. He testified to the connection between the Kachina 19 20 practices, the Hopi way, and the everyday life in Hopi Villages. Trial Transcript at 583, lines 21 20-25; 584, lines 1-10, 19-22.

22 122. The San Francisco Peaks are known to the Hopi as Nuvatukya’ovi - the “Place 23 of Snow on the Peaks.” Trial Transcript at 423, lines 2-8. 24 25 123. There are more than 40 kivas located throughout the 12 Hopi Villages. The 26 kivas are the focal point of all religious activity in the Hopi Villages and the central place to

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1 which the Kachina gather during their annual pilgrimage to and sojourn among the Hopi. 2 Trial Transcript at 429, lines 4-25; 430, lines 1-7. 3 124. The San Francisco Peaks are of central importance to Hopi tradition, culture, 4 5 and religion. There is a direct relationship between the Hopi way of life and the 6 environment, including the Peaks. This relationship may be traced back for thousands of 7 years. Trial Transcript at 423, lines 9-14, 20-25; 426, lines 13-25. 8 125. The San Francisco Peaks mark a cardinal direction defining the Hopi universe, 9 10 the spiritual boundaries of the Hopi way. Trial Transcript at 580, lines 15-17; 581, lines 3-9. 11 126. To the Hopi, the Peaks are the residence of the Kachina, spiritual deities of the 12 Hopi who travel from the Peaks to the Hopi Reservation to participate in traditional Hopi 13 kiva practices and dances in response to petitions and prayers from the Hopi who are 14 15 members of each kiva. Trial Transcript at 428, lines 9-13; 432, lines 12-16; 436, lines 1-9. 16 127. The Kachinas serve many purposes, among them is to teach lessons to the Hopi 17 and warn them of the consequences of their improper actions. The teachings of the Kachina 18 form the basis of the basic beliefs and mores of the Hopi people as lived out in their daily 19 20 lives. Trial Transcript at 434, lines 12-24. 21 128. Kachina songs teach messages on the principals that a community must live by

22 to stay viable, and for the Hopi, to achieve their destiny. Trial Transcript at 576, lines 17-25; 23 577, lines 1-4. Hopi children are taught these songs, “So that they can remember the words 24 25 as they do their work and play in life.” Trial Transcript at 577, lines 11-12. 26

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1 129. The Kachinas are teachers to the Hopi, teaching the Hopi life values, respect, 2 how to be industrious, and teaching through song, dance, and prayer that are learned and 3 heard by all Hopis. The Kachinas teach and show Hopis how to be better people and how to 4 5 lead a good life. Trial Transcript at 443, lines 1-25; 444, lines 12-13; 558, lines 17-24; 559, 6 lines 14-19; 560, lines 2-11. 7 130. The Hopi calendar connects the months and seasons in the Hopi year, the 8 coming and the going of the Kachina from the Peaks, and the ceremonies performed in the 9 10 kivas on the Hopi Reservation. Thus the Kachina define the passing of the months and the 11 continuity of the Hopi culture. Trial Transcript at 434-8. 12 131. The Kachinas bring the blessing of rain in answer to Hopi daily and seasonal 13 prayers. Trial Transcript at 558, lines 17-24; 559, lines 14-19; 560, lines 2-11. 14 15 132. Every Hopi is initiated into the Kachina Society. Trial Transcript at 441, lines 16 4-6. 17 133. The residents of one Hopi Village – Kykotsmovi - only have the Kachina 18 Society and religion as part of their traditional practices. Trial Transcript at 556, lines 8-16. 19 20 134. The Kachinas respond to Hopi prayers - if the Hopi show the proper humility - 21 by bringing water to the Reservation and to the world. Trial Transcript at 445, lines 2-25.

22 135. The practice of the Hopi way of life includes daily morning prayers to the 23 Peaks and prayers to the Kachina on the Peaks for water for crops and to sustain daily life. 24 25 Trial Transcripts at 542, lines 9-14. 26

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1 136. As Hopis grow and learn within the Kachina Society, they take on 2 responsibilities as the teachers of the younger children, responsible for relaying the 3 information taught them about the Kachina to the next generation. Trial Transcript at 561, 4 5 lines 11-25. 6 137. The Kachinas are the bringers of the “gift burden” to the Hopi of rain and life, 7 and serve to tie together the Hopi culture – the kinships and clanships tying all members of 8 the community into one group. Trial Transcript at 576, lines 8-17; 586, lines, 20-25; 587, 9 10 lines 1-11; 588 10-12. 11 138. The Hopi faith in Kachinas directly relates to their daily life of work in the 12 fields, evidenced by the songs they sing of the Kachinas while working. This faith has been 13 a characteristic of Hopi religion forever. Trial Transcript at 583, lines 20-25; 584, lines 1-10, 14 15 19-22. 16 139. The Kachinas come to the Hopi in response to prayers only if the peoples’ 17 hearts are in the right place. Trial Transcript at 582, lines 15-21. 18 140. The making of snow by artificial means, “is so contrary to what the beliefs of 19 20 the Hopi people are about, what the Katsina beliefway is all about, and what the mountains 21 represent to us.” Artificial snowmaking such as is included in the proposed expansion of the

22 Snow Bowl will defile the Peaks and profoundly affect the Hopi, their spiritual values, and 23 will be a burden the Hopi carry forever. Trial Transcript at 451, lines 20-23; 453, lines 8-9, 24 25 13; 459, lines 18-20; 460, lines 13-14. 26

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1 141. Snowmaking will negatively affect the daily worshipping practices and will 2 make the Kachinas unhappy. Trial Transcripts at 544, lines 1-15. 3 142. The proposed expansion of the Snow Bowl and the use of snowmaking with 4 5 reclaimed water will effect the preparation for religious ceremonies and the mind set of the 6 practitioners as they pray. Trial Transcript at 562, lines 19-25. 7 143. The proposed expansion of the Snow Bowl will result in difficulty in passing 8 along to children the Hopi faith and harm to that faith in the minds of the practitioners. It 9 10 will undermine their ability to carry out their religious and cultural duties to pass that faith 11 and knowledge to the children. Trial Transcript at 563, lines 14-20; 564, lines 9-13; 565, 12 lines 17-25; 566, lines 1-5. 13 144. The use of snowmaking on the Snow Bowl further undermines the integrity in 14 15 which the Hopi hold the San Francisco Peaks. Trial Transcript at 600, lines 15-17. 16 145. Snowmaking at Snow Bowl is a profane activity – the use of the Peaks without 17 conscience – which will undermine the cultural integrity, faith, and religion of the Hopi 18 people, rendering the practice of the Kachina religion meaningless, “a performance for 19 20 performance sake.” Trial Transcript at 601, lines 6-25; 602, lines 3-5, 11-12. 21 146. Bill Bucky Preston testified that if the Snowbowl Facilities Improvement

22 Project was allowed to go forward, it will destroy everything that Hopi people are because 23 the mountain is so sacred. Trial Transcript at 133 lines 1-10. 24 25 26

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1 c. Testimony on the Impacts on the White-Mountain and Yavapai- Apache Religion 2 147. Plaintiffs collectively produced three witnesses to testify about the importance 3 4 of the Peaks to the Navajo religion and the impact of the project. These included: (a) Ramon

5 Riley (Cultural Resource Director for the White Mountain Apache Tribe, Native American 6 Graves Protection and Repatriation Act representative for the White Mountain Apache Tribe, 7 practitioner of the Apache religion); (b) Dallas Massey (Chairman of the White Mountain 8 9 Apache Tribe); and (c) Vincent Randall (former Chairman of the Yavapai-Apache Nation,

10 Council member for the Yavapai-Apache Nation, Apache historian). 11 148. Ramon Riley, Dallas Massey, Vincent Randall all testified that there are four 12 13 sacred mountains to the Apache people. Ramon Riley testified that these four sacred

14 mountains to the White Mountain Apache are the Black Mountain (Mount Baldy), the 15 Turquoise Mountain (Mount Graham), the Red Mountain (Four Peaks), and the White 16 Mountain (the San Francisco Peaks). Vincent Randall testified that the four sacred 17 18 mountains to the Yavapai-Apache are the San Francisco Peaks, the Red Mountain just south 19 of Fort McDowell, Pinal Mountain, and eastern Mount Baldy in New Mexico. Trial 20 Transcript at 614 lines 16-22; 665 lines 7-9; 723 lines 23-25. 21 149. Ramon Riley testified that the San Francisco Peaks are where creation of the 22 23 Apache people originated, stemming from the White Painted Lady landing on the San 24 Francisco Peaks. Trial Transcript at 615 line 9. 25 26

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1 150. Dallas Massey testified that the testimony of Ramon Riley on the Apache 2 belief system was accurate. Trial Transcript at 660 lines 23-25. 3 151. Ramon Riley testified that one of the important dieties, or Gaan, lives on the 4 5 San Francisco Peaks. The “White Gaan” comes from the “Holy White Mountain” giving 6 “everlasting life.” Trial Transcript at 617 lines 10-12; 618 lines 10-11. 7 152. Vincent Randall testified that there are four groups of Gaan. “Depending on 8 which ceremony[,] … which [G]aans … were called upon, those groups would come [from 9 10 the San Francisco Peaks].” Trial Transcript at 696 lines 1-10.

11 153. Vincent Randall testified that the San Francisco Peaks is “a conduit[,] … the 12 top of the Peaks is like a catapult for our prayers. That as we pray, that these prayers go to 13 these four [sacred] mountains and shoot into space, so to say, to God.” Trial Transcript at 14 15 694 lines 12-16.

16 154. Ramon Riley testified that two of the religious ceremonies in which the San 17 Francisco Peaks play a role are the Sunrise Ceremony and the ceremonies performed by 18 Crown Dancers. The “Sunrise Ceremony is the rights of passage for young ladies that go 19 20 from adolescen[ce] to womanhood.” The Crown Dancers perform healing ceremonies “used 21 to heal people.” “[W]hat we call polio today [was] healed by these Crown dancers.” Trial

22 Transcript at 615 line 12 to 617 line 12. 23 155. Ramon Riley testified that each of the four sacred mountains contain plants, 24 25 called medicine, that are important to Apache culture. One of these medicines is white 26 medicine, which can only be found on the San Francisco Peaks. The white medicine does

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1 not grow in one specific place every year, “it moves around.” Trial Transcript at 619 lines 8- 2 24; 638 lines 20-21. 3 156. Vincent Randall testified that holy herbs, medicines and tobacco used in 4 5 religious rituals are collected on the San Francisco Peaks. “The [San Francisco Peaks] are 6 holy, and that’s the reason why the medicine is holy – more holy than any place else.” Trial 7 Transcript at 694 lines 17-22; 715 lines 21-22. 8 157. Ramon Riley testified that an Apache’s spirit ends up going home to reside 9 10 with its maker on the San Francisco Peaks. Trial Transcript at 619 lines 4-7.

11 158. Vincent Randall testified that the San Francisco Peaks is a holy Mountain, and 12 that the proposed project “would make the holy place impotent.” “Once something is 13 desecrated and … God leaves that holy place, then it is no longer powerful as an 14 15 intermediary to God himself.” Trial Transcript at 700 lines 21-22; 701 lines 7-12.

16 159. Ramon Riley testified that the proposed project will have a large negative 17 impact on the ability of the Apache people to perform the Sunrise Ceremony allowing a 18 young lady to pass into womanhood and the Crown dancer ceremonies. “Some of the 19 20 medicine people, including myself, will lose focus. Our medicine [and] our prayers [are] not 21 going to be strong.” Trial Transcript at 620 lines 11-21.

22 160. Ramon Riley testified that the proposed project “will probably destroy our 23 people, our way of life.” Trial Transcript at 624 lines 4-5. 24 25 161. Dallas Massey testified that the proposed project would “cause massive, 26 continuing, and largely unmitigated damages to the physical and spiritual integrity of a

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1 widely recognized American Indian sacred site, National Register-eligible historic property, 2 and fragile, already highly stressed ecosystem.” Trial Transcript at 662 line 22 to 663 line 3, 3 quoting Trial Ex. 1076 (his letter to the U.S. Forest Service regarding the DEIS). 4

5 3. Sunrise Ski Resort 6

7 162. Ramon Riley and Dallas Massey both testified that the Sunrise Ski Resort area 8 on the White Mountain range is not a sacred area to the Apache people. Trial Transcript at 9 622 lines 10-16; 675 lines 6-11. 10 11 163. William London, Senior Manager of Mountain Operations and Business

12 Development at the Sunrise Ski Resort, testified that he was not know of any religious or 13 ceremonial significance of the area to the White Mountain Apache Tribe on which the 14 Sunrise ski facilities are located. He also testified that he did not know of any opposition to 15 16 snowmaking based on religious or spiritual beliefs. Trial Transcript at 1914 lines 9-14; 1913

17 line 24 to 1914 line 8. 18 164. Dean Cramblitt, Infrastructure Manager at the Sunrise Ski Resort, testified that 19 the water treatment plants at the Sunrise Ski Resort receives waste stream the kitchens in the 20 21 day lodge and the Cyclone lodge, and waste stream from bathrooms from the day lodge,

22 Cyclone lodge, rental shop, ticket building, and an unoccupied cabin, which includes one 23 shower. Trial Transcript at 1921 line 19 to 1923 line 25. 24 165. Doreen Ethelbah-Gatewood, Director of Environmental Programs for the 25 26 White Mountain Apache Tribe, testified that Sunrise treatment plant processed water is

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1 discharged onto the ground. Some of that water discharges into East Becker Creek. Some of 2 the water from East Becker Creek reaches Ono Lake and some does not. When asked if it is 3 commonly understood that the water from Ono Lake can include the treated or reclaimed 4 5 water, Ms. Ethelbah-Gatewood testified that there is no way of telling. Trial Transcript at 6 1918 lines 19-25; 1919 line 22 to 1920 line 8. 7 8 d. Testimony on the Impacts on the Havasupai Religion 9 166. Rex Tilousi, a plaintiff, is the Chairman of the Havasupai Tribe and a resident

10 of the Northern District of Arizona, is a traditional practitioner of the Havasupai Religion. 11 Trial Transcript at 233 lines 13-14. 12 167. Dianna Sue Uqualla, a plaintiff, is the Vice-Chairwoman of the Havasupai 13 14 Tribe and a resident of the Northern District of Arizona, is a traditional practitioner of the 15 Havasupai Religion. Trial Transcript at 291 lines 8-17. 16 168. The Havasupai Tribe is a federally acknowledged tribe maintaining a 17 relationship with the United States of America with a reservation established by the Grand 18 19 Canyon Enlargement Act, 16 U.S.C. §§ 228i which is within the Northern District of 20 Arizona. 21 169. The Havasupai Tribe’s main village is Supai. It is located in the bottom of the 22 Grand Canyon and a majority of the tribal members reside in Supai. Trial Transcript at 233 23 24 lines 5-10. 25 170. The San Francisco Peaks were included within the Havasupai’s traditional 26 territory and traditionally exercised caretaker responsibility for the San Francisco Peaks, - 43 - THE SHANKER LAW FIRM, PLC. PLAINTIFFS’ FINDINGS OF FACT AND 600 EAST BASELINE ROAD, SUITE C-8 • TEMPE, AZ 85283-1210 CONCLUSIONS OF LAW TELEPHONE (480) 838-9448 • FACSIMILE (480) 838-9433 [email protected]

1 which the other Tribes in the region acknowledged. Trial Transcript at 244-5 lines 17-25 and 2 5-10. 3 171. The San Francisco Peaks are central to the Havasupais’ traditional religion. 4 5 Trial Transcript at 254 lines 20-25 and testimony of Rex Tilousi, Dianna Uqualla, and 6 Roland Manakaja. 7 172. For the Havasupai Tribe the San Francisco Peaks are the origin of the human 8 race, it is the point of their creation. Specifically, they believe that the water from the Peaks 9 10 impregnated their Grandmother by the Sun Father melting the snow on the San Francisco 11 Peaks. From the San Francisco Peaks comes life. Trial Transcript at 238-40 lines 22- 25, 1- 12 25, and 1-12 and at 297 lines 7-14. 13 173. The Havasupai traditional practitioners pray to the San Francisco Peaks and 14 15 visit them spiritually daily. Trial Transcript testimony of Rex Tilousi, Dianna Uqualla, and 16 Roland Manakaja. 17 174. Mr. Tilousi, Ms. Uqualla, and the Havasupai traditional practitioners believe 18 that the San Francisco Peaks are their connection to the Universe and the Peaks carry their 19 20 prayers to the Creator or to Spirit. Trial Transcript testimony of Rex Tilousi, Dianna Uqualla, 21 and Roland Manakaja.

22 175. The traditional practitioners of Havasupai religion deem the entirety of the San 23 Francisco Peaks as one living being and that portions of the mountain cannot be carved out 24 25 from the whole. Trial Transcript at 302 lines 9-22. 26

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1 176. The Havasupai traditional practitioners have gathered from the San Francisco 2 Peaks ceremonial items, water, food, and fallen trees for fuel for hundreds of years and still 3 use such article today. Trial Transcript at 264 lines 5-16 and at 248-9 lines 6-25 and 1-2 and 4 5 at 250-1 lines 24-25 and lines 1-2 and at 296-7 lines 11-25 and 1-2 and at 302 lines 5-7. 6 177. The act of making snow and modifying the seasons is considered a profane act 7 by the Havasupais. Trial Transcript at 246-7 lines 21 -25 and 1-2 and at 303-4 lines 20-25 8 and lines 1-7. 9 10 178. The Havasupai traditional practitioners believe that the reclaimed water which 11 will be utilized by the Snowbowl will not be spiritually clean nor will be fit for humans in 12 any form. It is their understanding that humans cannot cleanse the spirits of the dead from 13 the reclaimed water which will flow from the Peaks. Trial Transcript at 247 Lines 8-14. 14 15 179. The Havasupais’ religion utilizes water from the springs, seeps, and grips(sic) 16 from the Grand Canyon water which they believes flows from the San Francisco Peaks for 17 most if not all ceremonies. Trial Transcript at 263 lines 4-7 and at 299 lines 18-23. 18 180. Furthermore, the Havasupai traditional practitioners use spring water in their 19 20 sweat lodges which is their purification ritual. It is there belief that their sweat lodges will no 21 longer be effective for purification. Trial Transcript at 300-1 lines 13-25 and lines1-15 and

22 at 361-2 lines 1-25 and -1-21. 23 181. The Havasupai traditional practitioners believe that the steam which carries the 24 25 prayers and blessings to the Creator and humanity from the sweat lodge will be desecrated 26

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1 and ineffective because of the impurity in the water. Trial Transcript at 300-1 lines 13-25 and 2 lines1-15 and at 361-2 lines 1-25 and -1-21. 3 182. The Havasupai traditional practitioners utilize the rocks from the San Francisco 4 5 Peaks in their ceremonies including their sweat lodge. Trial Transcript at 250-1 lines 24-25 6 and lines 1-2 and at 302 lines 5-7. 7 183. The Havasupai believe that the water from snowmelt and rain from the San 8 Francisco Peaks flows northwesterly into Cataract Canyon and into Supai Village. Trial 9 10 Transcript at 263 lines 5-7, at 311-2 lines 18-25 and line 1, and at 341-2 lines 22-25 and lines 11 1-9. 12 184. Mr. Manakaja testified that he feared the induction of the reclaimed water into 13 the Tribes water sources would burden his practice of his ceremonial sweat lodge, 14 15 specifically: “It’s going to impact mentally my spiritually. Every time I think about 16 sprinkling that water on the rocks, I’m going to always think about this sewer that they’re 17 using to recharge the aquifer. That should never be that way.” Trial Transcript at 360 lines 18 22-25. 19 20 185. Mr. Manakaja also testified that the use of reclaimed water will prevent certain 21 ceremonies from being performed, including the “Baby Ceremony”. Trial Transcript at 342, 22 line 18-25 and at 343 lines 1-6. 23 186. During his testimony, Mr. Manakaja asked for forgiveness from the Creator for 24 25 speaking about things that “the U.S. Courts are forcing me to speak about, but it is not time 26 to do so.” Trial Transcript 348 lines 6-11.

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1 187. Mr. Tilousi testified that Havasupai traditional religious practitioners are 2 unable to discuss certain religious events until the seasons change. Trial Transcript 246, lines 3 21-25 and 247, lines 1-4. 4 5 188. Mr. Manakaja also testified that he anticipated the decline in the ceremonial 6 aspect of the Havasupai religion, specifically “I’m concerned that if this proposal goes 7 through, that our people may cease using the sweat lodge because of the impact and the 8 effects that we may get from the breathing the organisms or the chemicals that may come off 9 10 the stem which is going to be recharged much more.” Trial Transcript at 362 lines 9-13. 11 189. Mr. William Victor testified that because of the geologic formations of 12 volcanic rock which composes the San Francisco Peaks, the run off from rain and snow 13 would directly filter into the ground water system. Trial Transcript at 1315-6 lines 22-25 and 14 15 lines 1-3. 16 190. Mr. Victor testified that within the San Francisco Peaks Volcanic field there 17 are a number of aquifers. There are shallow perched aquifers sporadically existing 18 underneath the surface. Trial Transcript at 1324 lines 13-16. 19 20 191. Beneath the perched aquifers exists the Coconino Aquifer, or commonly 21 referred to as the “C aquifer.” Trial Transcript at 1324 lines 17-25.

22 192. Mr. Victor also testified that beneath the C-aquifer is the deep regional 23 Redwall-Mauv Aquifer which is present throughout the Coconino Plateau. Trial Transcript at 24 25 1325 lines 3-11. 26

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1 193. Mr. Victor testified that much of the snow that the Snowbowl proposes to 2 make will be lost to sublimation and turn into atmospheric gas. Trial Transcript 1316 lines 3 10-13. 4 5 194. He further testified that the gas would be subject to the weather currents 6 prevalent within the region. Trial Transcript at 1388 lines 3-5. 7 195. Mr. Victor testified that a large fault existed with the region of the Snowbowl, 8 referred to as the Mesa Butte Fault, served as a barrier to the flow of water from the San 9 10 Francisco Peaks in a Northwesterly direction and directed water either in a Northeasterly 11 direction to the Blue Spring or Southwesterly direction to the Verde Valley. Trial Transcript 12 at 1336 lines 2-6. 13 196. Mr. Victor testified that intersecting fault can serve as conduits to flow in the 14 15 directions of the intersecting fault. Trial Transcript at 1377 lines 11-14. 16 197. Mr. Victor testified that the Gray Mountain faults intersected with the Mesa 17 Butte fault and were northwesterly trending faults. Trial transcript at 1376 lines 9-20. 18 198. Mr. Donald Bills testified that he co-authored a report regarding the flooding in 19 20 Havasu Canyon, “When the Blue-Green Waters Turn Red.” Trial Transcript at 1449 lines 4- 21 7.

22 199. Mr. Bills indicated that the report included information from the flooding of 23 1910, which reported the flooding into Havasu Canyon to be from west and southern slopes 24 25 of the San Francisco Mountains. Trial Transcript at 1453 lines 7-14. 26

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1 e. Testimony on the Impacts on the Hualapai Religion 2 200. Frank Mapatis, spiritual leader for the Hualapai Tribe, testified that through the 3 Hualapai creation story, children are taught that the San Francisco Peaks are sacred, the 4 water is sacred, and the plants are sacred. Trial Transcript, at 16 lines 9-13; 15 lines 14-25; 5 6 16 lines 1-25; and 17 lines 1-6. 7 201. Frank Mapatis testified that, as a spiritual leader, he uses the San Francisco 8 Peaks to pray, collect plants and water, and to place childrens’ placentas. Trial Transcript at 9 10 21 lines 2-13. 11 202. Frank Mapatis testified that there are no other sacred places to gather water to 12 treat head illnesses, other than the San Francisco Peaks. Trial Transcript at 31 lines 21-23. 13

14 203. Frank Mapatis testified that people would get ghost sickness if they came in 15 contact with the artificial snow made from reclaimed water or if they consumed animals that 16 had been in contact with the reclaimed water. Trial Transcript at 43 lines 5-24. 17 18 204. Frank Mapatis testified that he would not be able to get the water from the San 19 Francisco Peaks if the Snowbowl Project was allowed to go forward. He would not be able 20 to practice his religion. Trial Transcript at 44 lines 16-25. 21 205. Frank Mapatis testified that if the Snowbowl Project was allowed to go 22 23 forward, he would not be able to teach the water songs to the next generation. Trial 24 Transcript at 46 lines 11-24.

25 26

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1 206. Hualapai Tribal Chairman Charles Vaughn testified that Frank Mapatis’ 2 testimony was consistent with the general beliefs of the Hualapai People. Trial Transcript at 3 88 lines 1-4. 4

5 D. DEFENDANTS HAVE NOT PROVEN A COMPELLING INTEREST IN THIS 6 PROJECT 1. ‘Multiple Use’ Does Not Require a Ski Resort with Artificial Snowmaking on the 7 Coconino National Forest 8 207. Coconino National Forest Peaks District Ranger Gene Waldrip testified that 9 10 there is no mandate for skiing on the San Francisco Peaks. Mr. Waldrip testified that there 11 was a mandate for recreation on the San Francisco Peaks under the Multiple Use Sustained 12 Yield Act. Trial Transcript at 1159 lines 1-6; 1177 lines 21-25; 1175 lines 1-3. 13 14 208. Nora Rasure, Coconino National Forest Supervisor, testified that the Forest 15 Service is mandated to provide outdoor recreation under the Multiple-Use Sustained Yield 16 Act. Trial Transcript at 1641 lines 13-14; 1675 lines 20-22. 17 18 209. Nora Rasure testified that if she felt that her approval of the project was not 19 supportable under RFRA that she could withdraw her decision. Ms. Rasure further testified 20 that if she withdrew the Record of Decision in this case, she would not be concerned that it 21 would run afoul of the multiple-use mandate. Trial Transcript at 1710-1711 lines 24-8. 22 23 210. Ms. Rasure also testified that there were approximately 1.8 million acres in the

24 Coconino Forest and that the 777 acres in the SUP area make up only a very small 25 percentage of the Forest. Ms. Rasure confirmed that whatever her decision on the project, it 26

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1 would not impact the Forest Service’s ability to manage the remaining Forest. Trial 2 Transcript at 1711-1712 lines 9 to 3. 3 4 211. Ms. Rasure testified that even if the proposed project was not allowed to go 5 forward, that Snowbowl (which is located in Management Area 15) could still be managed 6 as a ski area by the Forest Service. Trial Transcript at 1712 lines 4 to 8. 7 8 2. Skier Safety Issues are Not Adequately Addressed in this Project to Prove a Compelling Interest 9 10 212. John R. Murray testified that he believes that Snowbowl facilities, as they 11 12 currently exist, accommodate guests’ basic needs. Trial Transcript at 1830 lines 1-3. 13 213. John R. Murray testified that, compared to other ski resorts, trails at Snowbowl 14 are narrow and steep. Trial Transcript at 1740 lines 3-5. 15

16 214. Gene Waldrip testified that he has safety concerns for skiers at Snowbowl 17 skiing recklessly and the lack of visibility of Ski Patrol. Mr. Waldrip further testified that the 18 EIS did not address reckless skiing or lack of Ski Patrol. Trial Transcript at 1055 lines 14- 19 20 18; 1083 lines 6-9 and 18-25; Trial Ex. 1059. 21 215. However, Mr. Waldrip confirmed that the 2001 season was one of the safer 22 seasons on record at Snowbowl with the number of collisions down. Trial Transcript at 1086 23 24 line 18-20; Trial Ex. 2001 C. 25 26

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1 216. There are more issues than skiers and snowboarders acting in an unsafe manner 2 at Snowbowl. Other issues include counterfeit tickets, theft, drunk and disorderly, domestic 3 violence, ‘slope’ rage. There are cultural changes where individuals are not acting 4 5 responsibly and not understanding the assumption of risk inherent in the sport. These issues 6 are not addressed in the EIS. Trial Ex. 2001 C at FS00033; Trial Transcript at 1087 lines 14- 7 20; 1088 lines 3-15. 8 9 217. Gene Waldrip also testified that skiing is a dangerous activity, and that the 10 inherently steep slopes at Snowbowl can cause safety risks. Trial Transcript at 1075 lines 11 16-19. 12 13 3. The Arizona Snowbowl’s Contribution to the City of Flagstaff’s Economy Does Not Constitute a Compelling Interest in this Case 14 15 218. Eric Borowsky testified that the fees paid to the Coconino National Forest for 16 17 the Special Use Permit are deposited into the U.S. Treasury and do not go into the Coconino

18 National Forest. Trial Transcript at 1985 lines 1-5; 15-17; Trial Ex. 1047 at 15. 19 219. Skier visitation is not a major contributor to the City of Flagstaff’s economy. 20 21 Trial Ex. 2780 at 3-119, 3-120, and 3-82; Trial Transcript at 2019 lines 6-25; 2022 lines 3-6. 22 E. DEFENDANTS HAVE NOT PROVEN THAT THEY USED THE LEAST 23 RESTRICTIVE MEANS 24 25 26

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1 220. Nora Rasure confirmed that Alternative 2 would have the most significant and 2 irreconcilable impacts on cultural values, when compared to the other alternatives. Trial 3 Transcript at 1716 lines 7-11. 4 5 221. Ms. Provencio testified that Alternative 3 – which did not include snowmaking 6 – would have been consistent with the purpose and need for the project and would have had 7 less of an impact on Native American religion. Trial Transcript at 1233 lines 21-24; 1234 8 lines 10-11. 9

10 222. A snowplay area at an alternative location was not considered by the Forest 11 Service. Trial Transcript at 1831 lines 5-25; 1832 lines 1-13. 12 223. Gene Waldrip testified that Snowbowl could have submitted an application for 13 14 a test well to search for potable water for snowmaking and the Forest Service could have 15 evaluated it, but Snowbowl did not submit that application. Trial Transcript at 1037 lines 16 16-18; 1038 lines 4-8. 17 224. Mr. Donald Bills a hydrologist with the United States Geologic Survey 18 19 testified as the availability of water on the Coconino Plateau. Mr. Bills recently completed a 20 science investigation report of the groundwater resources of the Coconino Plateau, the San

21 Francisco Peaks are included within the ground water resources of the Coconino Plateau. 22 Trial Transcript at 1419 lines 3-5. 23 24 225. William Victor testified that both the R-Aquifer and C-Aquifer provide reliable 25 water supplies. Trial Transcript at 1325 lines 23-25; 1326 lines 4-8. 26

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1 226. William Victor testified that he estimated the cost to drill a well to supply 2 water for snowmaking in a dry year would be more than a million dollars. Trial Transcript at 3 1356 lines 24-35; 1357 lines 1-6. 4 5 227. Donald Bills testified that an aggregate from a couple of wells in the Inner 6 Basin of the San Francisco Peaks could supply a thousand gallons per minute. Trial 7 Transcript at 1422 lines 10-12. 8 228. Donald Bills testified that it would cost between $500,000 to $1,000,000 to 9 10 drill a large-capacity well in the Fort Valley area. He also testified that you would be 11 guaranteed to find water if you drilled deep enough. Trial Transcript at 1430 lines 23-25; 12 1431 lines 1-3 and 21-22. 13 229. Donald Bills testified that a well could be drilled into the R-Aquifer in the San 14 15 Francisco Peaks area and that would cost about $3 million. Trial Transcript at 1434 line 25; 16 1435 lines 1-7. 17 230. Donald Bills confirmed that there are presently wells in the R-aquifer that 18 produce several hundred gallons per minute and wells in the C-aquifer that produce more 19 20 than a thousand gallons per minute. Trial Transcript at 1452 lines 14-22; Trial Ex. 1186 at 21 134.

22 231. Ron Doba testified that out of the ten or eleven wells that the City of Flagstaff 23 has drilled, nine have been successful. Trial Transcript at 1503 lines 17-21. 24 25 26

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1 232. Eric Borowsky confirmed that he received an estimate from United Drilling to 2 drill a well in Ft. Valley into the C-aquifer for approximately $963,550. Trial Transcript at 3 2004 lines 13-25; 1-5. 4 5 II. CONCLUSIONS OF LAW 6 233. As an initial matter, it is well settled that the courts are prohibited from inquiry 7 into the truth or falsity of religious beliefs. So long as those beliefs are sincerely held, the 8 9 court’s inquiry is at an end. See e.g. U.S. v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 88

10 L.Ed. 1148 (1944); Thomas v. Review Bd. of the Ind. Emp. Sec., 450 U.S. 707, 714, 716, 101 11 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981) (“religious beliefs need not be acceptable, logical, 12 consistent, or comprehensible to others in order to merit First Amendment Protection … 13 14 Courts are not arbiters of scriptural interpretation”). 15 234. There does not appear to be any basis for challenging the sincerity of plaintiffs’ 16 beliefs in this case. Nobody in the instant matter has questioned or challenged the sincerity 17 of the beliefs held by the members of the plaintiff tribes and the individually named religious 18 19 practitioners. Indeed, in the Wilson decision, the Forest Service stipulated that the Navajo 20 and Hopi beliefs are religious and are sincerely held with respect to the San Francisco Peaks, 21 and that the record contained abundant evidence supporting that stipulation. Wilson v. Block, 22 708 F.2d 735, 740 (D.C. Cir. 1983). 23 24 25 26

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1 A. RFRA AND THE “SUBSTANTIAL BURDEN” TEST 2 235. In Emp. Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 3 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that the First 4 Amendment’s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of 5 6 general application that incidentally burden religious conduct. The Court recognized, 7 however, that the political branches could shield religious exercise through legislative 8 accommodation. 494 U.S. at 878-890. 9 236. In direct response to Smith, Congress enacted the Religious Freedom 10 11 Restoration Act of 1993 (“RFRA”), 107 Stat. 1488, 42 U.S.C. §§ 2000bb to 2000bb-4. See 12 Cutter v. Wilkinson, 125 S.Ct. 2113, 2118, 73 USWL 4397, 161 L.Ed.2d 1020 (2005). 13 237. The stated purpose of RFRA was to “restore the compelling interest test as set 14 forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 15 16 (1972) and to guarantee its application in all cases where free exercise of religion is 17 substantially burdened.” 42 U.S.C. § 2000bb(b). 18 238. RFRA provides that, “Government shall not substantially burden a person’s 19 exercise of religion even if the burden results from a rule of general applicability, except as 20 21 provided in subsection (b).” Subsection (b) provides that, “Government may substantially 22 burden a person’s exercise of religion only if it demonstrates that the application of the

23 burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is 24 the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 25 26 §2000bb-1(a),(b).

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1 239. Thereafter, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 2 L.Ed.2d 624 (1997), the Supreme Court ruled that certain provisions of RFRA, as applied to 3 state and local governments (not the federal government), were unconstitutional. In finding 4 5 that Congress had exceeded its authority as to the states, the court in City of Boerne found, 6 inter alia, that: 7 [t]he stringent test RFRA demands of state laws reflects a lack of 8 proportionality or congruence between the means adopted and the legitimate end to be achieved. . . . Claims that a law 9 substantially burdens someone’s exercise of religion will often be difficult to contest. See Smith, 494 U.S. at 887 (“What principle 10 of law or logic can be brought to bear to contradict a believer’s 11 assertion that a particular act is ‘central’ to his personal faith?”) . . . 12 City of Boerne, 521 U.S. at 533-534, 117 S.Ct. 2171. The Supreme Court further found that: 13 the Act imposes in every case a least restrictive means 14 requirement – a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify – which also indicates 15 that the legislation is broader than is appropriate if the goal is to 16 prevent and remedy constitutional violations. 17 City of Boerne, 521 U.S. at 535, 117 S.Ct. at 2171.

18 240. In short, the Supreme Court, in finding that RFRA went well beyond providing 19 for protections afforded by the Constitution, recognized that the Act afforded even greater 20 protections to the practice of religion than set forth in the pre-Smith cases. Cf, e.g, Guam v. 21 th 22 Guerrero, 290 F.3d 1210, 1220-1222 (9 Cir. 2002) (holding that RFRA remains applicable

23 to actions of the federal government); O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400-401 24 (7th Cir. 2003) (same); Kikumura v. Hurley, 242 F.3d 950, 958-960 (10th Cir. 2001) (same); 25 In re Young, 141 F.3d 854, 858-863 (8th Cir. 1998) (same). 26

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1 241. The evolution of RFRA did not end with City of Boerne. Congress responded 2 to the City or Boerne decision by enacting the Religious Land Use and Institutionalized 3 Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5. See Cutter v. 4 5 Wilkinson, 125 S.Ct. 2113, 2118, 73 USWL 4397, 161 L.Ed.2d 1020 (2005).

6 242. In RLUIPA, Congress, in pertinent part, amended the definition of “exercise of 7 religion” in the RFRA statute, to ensure even more sweeping protections to religious 8 practitioners. 9 10 243. Under RFRA as enacted November 16, 1993, the term “exercise of religion” 11 meant the “exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 12 2000bb-2(4) (1993). With the enactment of RLUIPA in 2000, the definition of “exercise of 13 religion” in RFRA was amended to mean, “religious exercise, as defined in section 8 of the 14 15 Religious Land Use and Institutionalized Persons Act of 2000 [42 USCS § 2000cc-5]”. 42 16 U.S.C. § 2000bb-2(4)(2000). The term “exercise of religion” under both the RFRA and 17 RLUIPA since 2000 therefore means and includes, “any exercise of religion, whether or not 18 compelled by, or central to, a system of religious belief”. RFRA at 42 U.S.C. § 2000bb- 19 20 2(4)(2000); RLUIPA at 42 U.S.C. § 2000cc-5(7)(A)(2000). 21 244. In other words, with the passage of RLUIPA in 2000, the RFRA definition of

22 “religious exercise” has been substantially modified and relaxed. See, Grace United 23 Methodist Church v. City of Cheyenne, 427 F.3d 775, 795, 796 (10th Cir. 2005); Warsoldier 24 th 25 v. Woodford, 418 F.3d 989, 994 (9 Cir. 2005); San Jose Christian College v. City of 26 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004); Kikumura v. Hurley, 242 F.3d 950, 960

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1 (10th Cir. 2001); 42 U.S.C. § 2000cc-3(g) (stating that the RLUIPA shall be construed “in 2 favor of a broad protection of religious exercise.”). 3 245. It is in this context that the determination of whether or not a government 4 5 action results in “substantial burden” on the exercise of religion must be made.

6 246. Under the current/applicable definition of “exercise of religion,” the Ninth 7 Circuit has established the following rule in determining whether or not a “substantial 8 burden” exists as a result of government land use: 9 10 [t]he government is prohibited from imposing or implementing a land use regulation in a manner that imposes a “significantly 11 great” restriction or onus on “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” . . . 12 unless the government can demonstrate that imposition of the burden . . . is: (1) in furtherance of a compelling governmental 13 interest; and (2) the least restrictive means of furthering that 14 compelling governmental interest. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034-1035 (9th Cir. 15 16 2004). 17 1. Plaintiffs Have Demonstrated That the Government Action at Issue 18 Results in a Substantial Burden to Their Ability to Practice Their Religion 19 247. When the facts, as set forth extensively above, are applied to the rule 20 articulated in San Jose Christian College v. City of Morgan Hill, 360 F.3d at 1034-1035, it is 21 22 clear that the government action in the instant case imposes a significantly great restriction or

23 onus on some exercise of religion, whether or not compelled by, or central to a system of 24 religious belief. 25 26

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1 248. The plaintiff tribes and Native American practitioners have demonstrated that 2 the government action at issue results in a substantial burden on their ability to practice their 3 religion. 4 5 249. Indeed, in the instant case, the government repeatedly admits that the project as 6 approved presents a significantly great onus or restriction on plaintiffs’ exercise of religion. 7 For example, in selecting Alternative 2, the Forest Service found, in part, that: 8 snowmaking and expansion of facilities, especially the use of 9 reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and continue 10 to be, the basis for the cultural identity for many of the tribes. 11 Trial Ex. 2780 (FEIS at 3-18); see also, e.g., Trial Ex. 3(a) (DEIS at 1-11) ( Although the 12 amended definition of RFRA specifically rejects a “centrality” test, the Forest Service 13 14 recognizes that “[t]he San Francisco Peaks are central to the cultures and religious practices

15 of many Native American tribes. . .”); Trial Ex. 3(b) (DEIS at 3-4) (“The San Francisco 16 Peaks are associated with cultural practices and beliefs of living Native American 17 communities that are rooted in their history and are important in maintaining the continuing 18 19 cultural identity of their community.”).

20 250. Without reiterating all of the facts set forth above, the Forest Service, for 21 example, found, in part, with regard to the Navajo that: 22 Doko’o-sliid (The San Francisco Peaks) in general, and Mount 23 Humphrey in particular, are sacred to members of the Navajo 24 Tribe of Indians. Doko’o-sliid has a unique religious significance on their daily religious lives; it has complete bearing 25 on their daily personal lives and the longevity of existence for these members of the tribe, and has complete connection with 26 daily songs and prayers to their super-natural beings.

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1 Trial Ex. 2757 (1979 EIS at 57-59). 2 251. Specifically with regard to the Hopi, the Forest Service has found, in part, that: 3 “[a]ll of the religious ceremonies encompassed within Nuvatukyaovi demonstrate the sacred 4 5 relationship of the Peaks to the Hopi people. . . The San Francisco Peaks are the spiritual 6 essence of what Hopis consider to be among the most sacred landscapes in Hopi religion, the 7 spiritual home of the Kachina . . . The ceremonies associated with the Peaks, the plants and 8 herbs gathered on the Peaks, and the shrines and ancestral dwellings located on the Peaks are 9 10 of central importance to the religious beliefs and practices of the Hopi People.” DEIS at 3-8; 11 see Trial Ex. 2780 (FEIS at 3-9). 12 252. Dr. Propper confirmed that the tribes view the San Francisco Peaks as a single 13 being or entity. She also confirmed the Tribes’ beliefs that you cannot hurt or harm a piece 14 15 of the Peaks without affecting the whole entity. Trial Transcript at 1610 lines 20-22; 1611 16 lines 8-14; 1611 lines 23-25; 1612 lines 1-7. 17 253. Dr. Propper further confirmed that the Tribes believe that the project at issue 18 19 will have a “devastating impact on their culture and religion.” Trial Transcript at 1615 lines 20 14-17.

21 254. The testimony of the parties, as set forth above, is generally consistent with the 22 Forest Service findings. The testimony demonstrates that the project will have a substantial 23 24 burden on the plaintiffs’ ability to practice their religion. 25 26

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1 2. Neither Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1982), Nor Lyng v. Northwest Indian Cemetery Assn., 485 U.S. 439 (1988) Have Any 2 Application to the Instant Case 3 255. Defendants generally cite to Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1982) 4 and Lyng v. Northwest Indian Cemetery Assn., 485 U.S. 439 (1988) as controlling, or at least 5 6 informative, on the nature of the balancing test required under RFRA. These cases are, 7 however, inapposite and do not control here.

8 256. As an initial matter, both Wilson and Lyng were First Amendment cases that 9 predated the passage of RFRA, as amended. As a result, neither case considers the 10 11 congressionally mandated definition of “exercise of religion” at issue in this case. No First 12 Amendment claim was brought in the instant case. Both Wilson and Lyng are, however,

13 further distinguishable. 14 257. In Wilson, the court held that plaintiffs had to demonstrate that “the 15 government land at issue is indispensable to some religious practice. . .” Thus, according to 16 17 the court, plaintiffs had to prove “that the religious practice could not be performed at any

18 site other than that to be developed.” 708 F.2d at 744. 19 258. Plaintiffs, in the instant case have, however, testified to, and the Forest Service has 20 extensively documented, the sincerely held belief that the Peaks are a single living being or 21 22 entity that cannot be carved up. By holding that the tribes can use other parts of the Peaks to

23 pray and for their ceremonies, the D.C. Circuit has misconstrued the nature of the religion(s) 24 at issue in this case. If, however, we properly consider the religions at issue (as we must) 25 from the perspective of the believer, the SUP area is an “indispensable” part of the Peaks, 26

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1 just as the heart or other organ is an indispensable part of the body. Cf, e.g., Muslim v. 2 Frame, 897 F.Supp. 215, 217 (E.D. Penn. 1995) (“Just as the government cannot justify 3 restricting some forms of speech merely by pointing to other opportunities a person has to 4 5 speak, so the government cannot limit particular exercises of religion by pointing to other 6 religious practices that remain available. It would be curious to find that RFRA barred 7 challenges to governmental restrictions on religion as long as the plaintiff could practice, 8 say, two-thirds of his religion.”). 9 10 259. Notwithstanding the foregoing, the “indispensable to” requirement applied by 11 the Wilson court is contrary to the broad protections to “any exercise of religion, whether or 12 not compelled by, or central to, a system of religious belief” contemplated by Congress in 13 RFRA. See RFRA at 42 U.S.C. § 2000bb-2(4)(2000); RLUIPA at 42 U.S.C. § 2000cc- 14 15 5(7)(A)(2000). Compliance with RFRA is what is at issue in the instant case. 16 260. It is also instructive that the Wilson court rejected plaintiffs’ attempt to utilize 17 Sherbert – indicating that Sherbert is only applicable in cases where the government 18 penalizes adherence to religious belief by conditioning benefits. Id. at 741-742. This 19 20 conclusion is contrary to the stated purpose of RFRA, which is, in pertinent part, to “restore 21 the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) . . . and to

22 guarantee its application in all cases where free exercise of religion is substantially 23 burdened.” 42 U.S.C. § 2000bb(b). Again, Wilson is at odds with the subsequently passed 24 25 requirements of RFRA. 26

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1 261. Finally, even if the Court assumes, arguendo, that Wilson remains viable under 2 RFRA, the inescapable fact remains that it was a decision from the D.C. Circuit. Here, the 3 Ninth Circuit has provided a definition of “substantial burden” to the “exercise of religion” 4 5 as defined in RFRA – in the context of government land use. See, San Jose Christian College 6 v. City of Morgan Hill, 360 F.3d 1024, 1034-1035 (9th Cir. 2004). While decisions of other 7 Circuits, like Wilson, can be instructive, the decisions of this Court are guided by the Ninth 8 Circuit, which has not adopted the “indispensability” requirement of Wilson. 9 10 262. The Supreme Court in Lyng v. Northwest Indian Cemetery Assn., 485 U.S. 439 11 (1988) is even further removed from the requirements of RFRA than Wilson. 12 263. The Supreme Court in Lyng expressly rejects the requirement to do any 13 balancing. Indeed, according to the Court, “[e]ven if we assume that we should accept the 14 15 Ninth Circuit’s prediction, according to which the G-O road will ‘virtually destroy the . . . 16 Indians’ ability to practice their religion,’ the Constitution simply does not provide a 17 principle that could justify upholding respondents’ legal claims.” Id. at 451-452. 18 264. The Lyng court does not apply the “compelling interest test” mandated by 19 20 RFRA. Indeed, as stated in Smith, 494 U.S at 883, the case that RFRA sought to overturn, 21 “we declined (in Lyng) to apply Sherbert analysis to the Government’s logging and road

22 construction activities . . . even though it was undisputed that the activities ‘could have 23 devastating effects on traditional Indian practices.’” It was this refusal of the Supreme Court 24 25 to apply the Sherbert balancing test in Smith, and Lyng and other religious freedom cases 26

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1 brought under the Free Exercise Clause of the First Amendment, that Congress specifically 2 rejected when it enacted RFRA. 3 265. In order to apply the reasoning of Lyng to the instant case the Court would 4 5 have to ignore the express language of RFRA. It is obvious that Lyng implements neither the 6 letter nor the intent of RFRA, as amended. Lyng cannot be applied to the instant case. 7 266. RFRA “applies to all Federal law and the implementation of that law . . . 8 Nothing in this Act shall be construed to authorize any government to burden any religious 9 10 belief.” 42 U.S.C. § 2000bb-3(a), (c)(1993 as amended in 2000). See also H.R. Rep. No. 11 108-88, 103rd Cong., 1st Session (1993) at 6 (“[The] definition of government activity 12 covered by the bill is meant to be all inclusive. All government actions which have a 13 substantial external impact on the practice of religion would be subject to the restrictions of 14 15 this bill.”). 16

17 B. CONCLUSIONS OF LAW PARTICULAR TO THE “COMPELLING INTEREST” AND “LEAST RESTRICTIVE MEANS” REQUIREMENTS OF 18 RFRA 19 267. RFRA prohibits government from substantially burdening a person’s exercise

20 of religion unless the government can demonstrate that the burden: (a) is in furtherance of a 21 compelling governmental interest; and (b) is the least restrictive means of furthering that 22 compelling governmental interest. 23 24 25 26

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1 1. The Forest Service has Not Demonstrated a Compelling Interest in the Expansion of Snowbowl as Proposed 2 268. The Court has determined that plaintiffs have met their burden of showing a 3 4 “substantial burden.” The burden now shifts to the government to demonstrate, in the first

5 instance, the existence of a compelling governmental interest. 6 269. “Demonstrate” means to meet the burden of going forward with the evidence 7 and of persuasion. Evidence which does not preponderate or is in equipoise fails to meet the 8 9 required burden. 42 U.S.C. §§ 2000bb-1(b)(1), 200bb-2(3); O Centro Espirita Beneficiente

10 Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1181 (10th Cir. 2003), affd. en banc, 389 F.3d 11 973 (10th Cir. 2004), cert. granted, 125 S. Ct. 1846, 73 U.S.L.W. 3619, 161 L.Ed.2d 723 12 (2005); Kikumura v. Hurley, 242 F.3d 950, 961, 962 (10th Cir. 2001); Jolly v. Coughlin, 76 13 nd 14 F.3d 468, 477, 478 (2 Cir. 1996). 15 270. Requiring the government “to demonstrate a compelling interest and show that 16 it has adopted the least restrictive means of achieving that interest is the most demanding test 17 known to constitutional law.” City of Boerne, 521 U.S. at 534. 18 19 271. Compelling interest was defined in Sherbert v. Verner, 374 U.S. 389, 403, 406, 20 407, 83 S.Ct. 1790, 1793, 1795, 10 L.Ed.2d 965 (1963) as an interest that poses, “… some 21 substantial threat to public safety, peace or order . . . in this highly sensitive constitutional 22 area, ‘only the gravest abuses, endangering paramount interest, give occasion for permissible 23 24 limitation,’ Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430. No such 25 abuse or danger has been advanced in the present case …” 26

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1 272. In Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 2 (1972), the Supreme Court declared, in defining compelling governmental interests, that, 3 “[t]he essence of all that has been said and written on the subject is that only those interests 4 5 of the highest order and those not otherwise served can overbalance legitimate claims to the 6 free exercise of religion.” 7 273. Cases interpreting RFRA have ruled that the compelling interest test cannot be 8 met through generalized assertions of government interest, but must be measured by the 9 10 specific action that would apply to the affected individuals. See, O Centro Espirita 11 Beneficiente UniaoDo Vegetal v. Ashcroft, 342 F.3d 1170, 1181 (10th Cir. 2003), affd. en

12 th banc, 389 F.3d 973 (10 Cir. 2004), cert. granted, 125 S.Ct. 1846, 73 U.S.L.W. 3611, 161 13 L.Ed.2d 723 (2005) (government’s interest in banning hallucinogens in general is not 14 15 enough; government must demonstrate that it has a compelling interest in banning all uses of 16 the actual substance needed for the tea utilized in Plaintiff’s religious ceremony; and that the 17 application of the substantial burden to the particular Plaintiff furthers a compelling interest, 18 not merely application of the law in general); Kikumura v. Hurley, 242 F.3d 950, 961, 962 19 th 20 (10 Cir. 2001) (under RFRA, a Court does not consider the regulation in its general 21 application, but rather considers whether there is a compelling government reason, advanced

22 by the least restrictive means, to apply the regulation to the individual claimant).4 23

24 4 Courts have found a compelling governmental interest “of the highest order” in 25 preserving Native American culture and religion. U.S. v. Hardman, 297 F.3d 1116, 1127- 1129 (10th Cir. 2002); U.S. v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997). See also, e.g., 26 United States v. Dion, 476 U.S. 734, 741, 742, 106 S.Ct. 2216, 2221, 2222, 90 L.Ed.2d 767 (1986) (Interior Department noted that the golden eagle is important in enabling many Indian - 67 - THE SHANKER LAW FIRM, PLC. PLAINTIFFS’ FINDINGS OF FACT AND 600 EAST BASELINE ROAD, SUITE C-8 • TEMPE, AZ 85283-1210 CONCLUSIONS OF LAW TELEPHONE (480) 838-9448 • FACSIMILE (480) 838-9433 [email protected]

1 274. The government has not met its burden of establishing a compelling interest – 2 “the most demanding test known to constitutional law” – in the proposed expansion of the 3 Snowbowl Ski area, including the use of reclaimed waste water to make snow. 4 5 275. Indeed, it is still not completely clear what the compelling interest is that is 6 being asserted. 7 276. The Forest Service and ASR have asserted that the compelling government 8 interest at issue in this case is based on the government’s “multiple use mandate.” 9 10 277. Nora Rasure, the Forest Supervisor and a named defendant in this case, 11 however, testified that if she felt that her approval of the project was not supportable under 12 RFRA that she could withdraw the decision. She also testified that if she decided to withdraw 13 her approval of the project, such withdrawal would not run afoul of the “multiple use 14 15 mandate.” Trial Transcript at 1710-1711 lines 24 to 8. 16 278. What is not clear to the Court is how, if the Forest Supervisor withdraws her 17 decision, there is no resulting impact on the Forest Service’s multiple use mandate. On the 18 other hand, the Forest Service appears to be arguing that if the Court were to essentially grant 19 20 the exact same relief, this decision would somehow implicate a compelling governmental 21 interest in this same multiple use mandate. This position cannot be supported. 22 23 24 Tribes, particularly those in the Southwest, to continue ancient customs and ceremonies that 25 are of deep religious or emotional significance to them); Rupert v. Director, United States Fish And Wildlife Service, 957 F.2d 32, 34, 35 (1st Cir. 1992)(special and preferential 26 treatment towards Native Americans, who have a unique legal status under Federal law).

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1 279. Notwithstanding the foregoing, Ms. Rasure also testified that there were 2 approximately 1.8 million acres in the Coconino Forest and that the 777 acres in the SUP 3 area make up only a very small percentage of the Forest. Ms. Rasure confirmed that 4 5 whatever her decision on the project, it would not impact the Forest Service’s ability to 6 manage the remaining Forest. Trial Transcript at 1711-1712 lines 9 to 3. 7 280. Ms. Rasure further testified that even if the proposed project was not allowed 8 to go forward, that Snowbowl (which is located in Management Area 15) could still be 9 10 managed as a ski area by the Forest Service. Trial Transcript at 1712 lines 4 to 8. 11 281. Even assuming, arguendo, that the government’s reliance on the “multiple use 12 mandate” was appropriate – which is not clear in this case – the government has not 13 demonstrated a compelling interest in the proposed expansion of the ski area. 14 15 282. Here it appears that the application of the multiple use mandate championed by 16 the Forest Service is not appropriate. The fact is that the Forest Service is not required or 17 mandated to provide or even permit skiing and snowboarding resorts on any Forest lands 18 including the Peaks. Ski area permits are instead issued at the discretion of the Forest Service 19 20 and the Secretary of Agriculture and may be cancelled altogether in whole or in part for 21 various reasons, including a determination by the Secretary in planning for uses of the

22 Coconino National Forest and the Peaks that the special use permit area is needed for a 23 higher purposes. 16 U.S.C. § 497b; 36 C.F.R. § 251.53(n); See also Estate of Hartman v. 24 25 Jackson Hole Mtn. Resort Corp., 200 F.Supp.2d 1329, 1333-1340 (in wrongful death action 26 arising out of a snowboarding accident at a ski resort on national Forest land, the Forest

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1 Service’s regulation and monitoring of the permittee’s skiing operations and activities fell 2 within the discretionary exception to the Federal Tort Claims Act). 3 283. The Forest Service and ASR also argued that the compelling government 4 5 interest in this case involves the financial concerns and interests of ASR. Under the exacting 6 requirements set to establish a compelling interest as outlined above, the Forest Service 7 cannot establish a compelling government interest in ASR’s (a private company) financial 8 well-being. 9 10 284. ASR further argued that their contribution to the City of Flagstaff’s economy 11 constitutes a compelling interest. However, this argument also fails to meet the exacting 12 requirements of compelling interest. Indeed, it is far from clear that ASR even plays a 13 significant role in the City of Flagstaff’s economy. Trial Transcript at 1985 lines 1-5; 15-17; 14 15 Trial Ex. 1047 at 15; Trial Ex. 2780 at 3-119, 3-120, and 3-82; Trial Transcript at 2019 lines 16 6-25; 2022 lines 3-6. 17 285. The Forest Service and ASR additionally argued that safety concerns about the 18 current operations at the Snow Bowl constitute a compelling government interest in this case. 19 20 As testified to by the Defendant’s witness Ms. Provencio, at least one other alternative 21 expansion option existed that also addressed the safety concerns expressed by ASR –

22 Alternative 3, the expansion option that did not include snowmaking. See Trial Transcript at 23 1233 lines 21-25; 1234 lines 1-11; 1239, lines 11-22. Therefore, if Alternative 3 could have 24 25 been chosen and thereby addressed safety, multiple uses, and other parts of the “purpose and 26

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1 need,” the USFS cannot have a compelling government interest in the choice of Alternative 2 2. 3 286. In the instant case, the Forest Service has not sufficiently demonstrated the 4 5 existence of a compelling governmental interest in the proposed project. As a result, this 6 Court need not address the “least restrictive means” element of the RFRA balancing test. 7 Even assuming, arguendo, that a compelling interest had been demonstrated, however, the 8 Forest Service did not use the least restrictive means of accomplishing its goal. 9

10 2. The Forest Service has Not Demonstrated That it Utilized the Least 11 Restrictive Means Available of Accomplishing its Goal 12 287. Even if this Court were to find and conclude that the Proposed Project furthers

13 a compelling governmental interest, the Forest Service and Snowbowl have failed to meet 14 the government’s burden to demonstrate that the Proposed Project is the least restrictive 15 means of achieving a compelling governmental interest. 16 17 288. Under the third prong of RFRA the Government must demonstrate, and bears

18 the burden of going forward with the evidence, that the Proposed Project is the least 19 restrictive means of furthering the asserted compelling governmental interest. 42 U.S.C. §§ 20 2000bb-1(b)(2) & 2000bb-2(3). 21 22 289. The Forest Service cannot meet its burden to prove least restrictive means

23 unless it demonstrates that it, not Snowbowl, has actually considered and rejected the 24 efficacy of less restrictive measures before adopting the challenged practice. Conclusory 25 statements that the Project is the least restrictive means of achieving the asserted compelling 26

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1 governmental interest does not suffice. Warsholdier v.Woodford, 418 F.3d 989, 998-1001 2 (9th Cir. 2005). See also Jolly v. Coughlin, 76 F.3d 468, 478-480 (2nd Cir. 1996) and May v. 3 Baldwin, 109 F.3d 557, 563-565 (9th Cir. 1997) (“The legislative history of RFRA also 4 5 makes clear, however, that ‘inadequately formulated prison regulations and policies 6 grounded on mere speculation, exaggerated fears, or post-hoc rationalization will not suffice 7 to meet the act’s requirements … our holding should not suggest that prison officials can 8 satisfy the demands of RFRA with mere assertions of unfulfilled security objectives. Where 9 10 a prisoner challenges their justifications, prison officials must set forth detailed evidence, 11 tailored to the situation before the Court, that identifies the failings in the alternatives 12 advanced by the prisoner …”.). 13 290. Similarly, the Court in United States v. Hardman, 297 F.3d 1116, 1129, 1130 14 th 15 (10 Cir. 2002) stated, “ … the burden of building a record for our review falls upon the 16 United States. Werner v. McCotter, 49 F.3d 1476, 1480 n. 2 (10th Cir. 1995). Mere 17 speculation is not enough to carry this burden. Sherbert, 374 U.S. at 407, 83 S.Ct. 1790 18 (‘The [State] suggest[s] no more than a possibility that the filing of fraudulent claims by 19 20 unscrupulous claimants feigning religious objections to Saturday work might not only dilute 21 the unemployment compensation fund but also hinder the scheduling by employers of

22 necessary Saturday work … [T]here is no proof whatever to warrant such fears of 23 malingering of deceit as those which the [State] now advance[s].”); Yoder, 406 U.S. at 224- 24 25 25, 92 S.Ct. 1526 (calling for ‘specific evidence’ of the interests advanced and how 26

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1 accommodation would affect them); Werner, 49 F.3d at 1480 (stating that ‘the state must do 2 more than simply offer conclusory statements’ to satisfy its burdens)(citation omitted) …”. 3 291. Ms. Provencio testified that Alternative 3 – which did not include 4 5 snowmaking – would have been consistent with the purpose and need for the project and 6 would have had less of an impact on Native American religion. Trial Transcript at 1233 7 lines 21-24; 1234 lines 10-11. 8 9 292. Nora Rasure confirmed that Alternative 2 would have the most significant and 10 irreconcilable impacts on cultural values, when compared to the other alternatives. Trial 11 Transcript at 1716 lines 7-11. 12 293. The project would have been less restrictive if the Forest Service had, for 13 14 example, located the snow play area someplace other than on the Peaks. This was never 15 even considered by the Forest Service. Trial Transcript at 1831 lines 5-25; 1832 lines 1-13. 16 294. Further, neither the Forest Service nor ASR thoroughly considered a water 17 source other than reclaimed water. Although old well logs were reviewed, a test well was 18 19 never drilled. Indeed, an application to drill one was never submitted by ASR. Trial 20 Transcript at 1037 lines 16-18; 1038 lines 4-8. This is despite the fact that fresh water

21 sources may be available. In fact, ASR received an estimate for drilling a fresh water well. 22 Trial Transcript at 2004 lines 13-25; 1-5. 23 24 295. Even assuming, arguendo, that the Forest Service has a compelling interest in 25 this project, they did not use the least restrictive means available to them to accomplish their

26 goal.

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1 Respectfully submitted November 30, 2005.

2 THE SHANKER LAW FIRM, PLC. 3

4 By s/Howard M. Shanker 5 Howard M. Shanker Tamera C. Shanker 6 600 East Baseline Road, Suite C-8 Tempe, Arizona 8583-1210 7 Phone: (480) 838-9460 Facsimile: (480) 838-9433 8 (Attorneys for Plaintiffs)

9 s/ Laura Berglan authorized 11/30/05 10 Laura Berglan One of Plaintiffs Hualapai Tribe et al.’s 11 Attorneys DNA - People's Legal Services, Inc. 12 P.O. Box 765 Tuba City, AZ 86045 13 Tele: (928) 283-3211 14 Fax: (928) 283-5460

15 s/Lynelle K. Hartway authorized 11/30/05 16 Lynelle K. Hartway One of Plaintiffs Hopi Tribe’s Attorneys 17

18 _ s/ Alysia LaCounte authorized 11/30/05 Alysia LaCounte 19 One of Plaintiffs Havasupai Tribe et al.’s Attorneys 20 ORIGINAL of the foregoing 21 filed November 30, 2005 on the ECF system, with:

22 Clerk of the Court U.S. District Court, Dist. Of Arizona 23 401 W. Washington 24 Phoenix, Arizona 85003

25 Copy of the foregoing to be hand-delivered on December 26 1, 2005 to:

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1 Judge Paul G. Rosenblatt 2 U. S. District Court, Dist. Of Arizona 401 W. Washington 3 Phoenix, Arizona

4 COPY of the foregoing sent via ECF system 5 On November 30, 2005 to the following:

6 Rachel Dougan General Litigation Section 7 Environmental & Natural Resources Division U.S. Department Of Justice 8 P.O. Box 663 Washington, D.C. 20044-0663 9 Facsimile (202)305-0506 [email protected] 10 Attorneys for Federal Defendants

11 Philip Robbins 12 Paul Johnson ROBBINS & GREEN, PA 13 3300 N. Central Ave., Suite 1800 Phoenix, AZ 85012-2518 14 Facsimile (602) 266-5369 [email protected] 15 [email protected] Attorneys for Intervenor ASR 16 Janice Schneider 17 Bruce Babbit 18 LATHAM & WATKINS LLP 555 11th Street, NW Ste. 1000 19 Washington, DC 2004 Facsimile (202) 637-2201 20 [email protected] [email protected] 21 Attorneys for Intervenor ASR

22 By: s/Laura Berglan 23

24 25 26

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